SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D2160/2018
In the matter between:
VIKRAM SINGH Applicant
and
BUFFALO CITY METROPOLITAN MUNICIPALITY First Respondent
COMMISSIONER SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL (SALGBC) Second Respondent
Third Respondent
Heard: 7 August 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 13h00 on 25 March 2026.
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: No
___________ __________
Signature Date
2
ALLEN-YAMAN J
Introduction
[1] The applicant seeks an order reinstating his review application, as well as
orders condoning the late initiation of the review application itself and the late
delivery of the record. The review application is one in which the applicant
seeks to set aside an award issued by the second respondent dated 14 August
2018 under case number ECD021418 in which she found that his dismissal had
been both substantively and procedurally fair.
[2] Despite both interlocutory applications having been opposed by the first
respondent, which also opposed the main application, there was no
appearance on behalf of the first respondent when the matter came before this
court, and nor had the first respondent delivered heads of argument in advance
of the hearing.
[3] Mr Mpanza, who appeared on behalf of the applicant, informed the court that
he had spoken with the attorney responsible for dealing with the matter on
behalf of the first respondent, Mr Majebe, and had reminded him that the matter
was in court. Mr Majebe informed him that he had not received the notice of
set down which Mr Mpanza disputed, he himself having transmitted it to him by
way of email on 21 July 2025, and a email notification had been received by
him indicating that his own email had been read. In addition, Mr Mpanza
indicated that he had transmitted both the applicant’s heads of argument and
practice note to the first respondent’s attorney, with one Ms Cabane having
indicated to him that both documents had been received at the first
respondent’s attorney’s offices. Mr Mpanza informed the court further that he
had enquired of Mr Majebe as to his intentions for the day, whereupon he was
informed that Mr Majebe wanted the application postponed, with costs
reserved.
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[4] The review application was served on the first respondent by way of both email
and posting by registered post on 17 January 2019. Four days later, on 21
January 2019, the first respondent notified the applicant of its intention to
oppose the application and thereby appointed a firm of attorneys to represent it,
with that firm of attorneys’ address to be used for the purposes of service. The
email address specified therein was l[…] .
[5] Seemingly having overlooked that a notice of opposition had already been
delivered, the first respondent’s attorney delivered a second notice to this effect
on 21 February 2022. In the second notice, the email address a[ …] was noted
as having been the first respondent’s attorneys’ email address.
[6] Nothing in the court file indicated that, prior to the delivery of the second notice
of opposition, the first respondent’s attorney had notified the Registrar of this
court of its intention to utilise an email address other than the first one
stipulated, or that the first stipulated email address , l […] , was no longer
functional. This was the email address to which the notice of set down was
sent by the Registrar on 13 November 2024. The automated notification
system reflected further that delivery to that address had been completed.
[7] This court is accordingly satisfied that the notice of set down was transmitted to
the first respondent’s attorney, having been sent to and received by an email
address appointed by it for service.
[8] Whilst this court was not privy to the other documentation Mr Mpanza sent to
the first respondent’s attorney on 21 July 2025, his service affidavit reflected
that he had transmitted the applicant’s heads of argument and practice note to
the first respondent’s attorney that day . He had taken the precaution of
transmitting the documents to both email addresses utilised by the first
respondent’s attorney, and Ms Samantha Cebane subsequently confirmed that
respondent’s attorney, and Ms Samantha Cebane subsequently confirmed that
both documents had been received. If the first respondent’s attorney had
somehow overlooked the notice of set down which had been transmitted to it by
the Registrar, Mr Mpanza’s practice note clearly reflected that the date of the
hearing was 7 August 2025.
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[9] In the circumstances, this court having satisfied itself that the first respondent
was properly notified of the hearing of the application and ought to have been
aware thereof, and there having been no application for a postponement before
the court, Mr Mpanza was permitted to present argument in respect of both the
reinstatement and condonation applications.
Background
[10] The applicant was employed by the first respondent as a Senior
Superintendent, responsible for the first respondent’s public swimming pools
until his dismissal on 28 February 2014, having been found to have been guilty
of misconduct. Albeit that the notice given to the applicant to attend a
disciplinary enquiry was not presented to this court as a part of the record, it is
evident from the award that he had been dismissed pursuant to having been
found to have given an unlawful instruction to one of his subordinates, Mr
Graham Goliath, to repair a motor operating a gate at a property which he
owned and which he leased to tenants.
[11] The applicant challenged the fairness of the decision to dismiss him. The
award which is the subject of the present proceedings is the third award issued
in his dispute, the first two awards having been set aside at the conclusion of
review proceedings initiated by the applicant, and in both cases, his dispute
having been remitted to the South African Local Government Bargaining
Council to be arbitrated de novo . Whilst it is not clear from the papers before
this court on what basis the first of the applic ant’s review proceedings
succeeded, the second review application resulted in an order taken by consent
due to the record having been irrecoverably lost.
[12] As with the previous arbitrators, the second respondent found that the
applicant’s dismissal had been both substantively and procedurally unfair, a
finding which the applicant seeks this court to overturn. In the review
proceedings the applicant asked this court to order,
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‘That the arbitration award dated 14 August 2018 issued by the second respondent is
hereby reviewed and replaced with an Award that the dismissal of the applicant was
unfair, alternatively that the dispute be referred back to the South African Local
Government Bargaining Council (SALGBC) for arbitration before another
commissioner other than the Second Respondent.’
Analysis
[13] In circumstances in which the review application itself was i nitiated outside of
the time frames permitted, and the record was delivered late, the applicant has
applied for both re-instatement and condonation. Both application s require this
court to consider the length of the delay, the explanation therefor, the
applicant’s potential prospects of success, as well as questions of prejudice. In
the final result, this court must be persuaded that the interests of justice require
it to grant the applicant the indulgences he seeks.
[14] As regards the delay in the initiation of the application was concerned, although
the award is dated 14 August 2018, he alleged that he only received a copy
thereof by w ay of email from the SALGBC on 28 August 2018. The first
respondent denied the correctness of that assertion, and alleged that the
SALGBC had disseminated the award on 15 August 2018. In support of this
assertion, reference was made to a letter by the SALGBC said to have been
annexed to its answering affidavit, but which was not attached. In reply, the
applicant, having observed that he did ‘not phantom what the first respondent
[was] trying to decipher’, stated only that the first respondent had not submitted
any proof contradicting the statement made by him in his founding affidavit. In
this, he overlooked that even without the letter the first respondent had attested
to a version which countered his own, and which he had not refuted. Being
motion proceedings, this court must accept the version of the first respondent
motion proceedings, this court must accept the version of the first respondent
that the award was transmitted to the parties on 15 August 2018, the day after
the award was issued by the second respondent.
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[15] The applicant’s review application was initiated on 24 January 2019 . The
applicant himself did not favour this court with the specifics as to the date by
which he ought to have initiated his application, or the actual length of the
delay, leaving this court to establish the relevant information itself. Given that
the applicant had a period of six weeks from the date on which he received the
award, he had until 26 September 2018
1 to commence review proceedings. In
the result, the period of delay has been calculated to have been 120 days.
[16] The applicant also failed to favour this court with any specifics concerning the
extent of the delay in the delivery of the record, which resulted in the review
application having lapsed. Having investigated the notices delivered, this court
has determined that the Notice in terms of Rule 7A(5) in terms of which the
applicant was advised that the record had been made available was transmitted
to him on 17 March 2020, whilst the transcribed portion thereof was delivered
on 16 November 2023. As the applicant had a period of 60 days within which
to deliver the record,
2 this ought to have been done by not later than 9 June
2020. The period of delay was accordingly three years and five months.
[17] The applicant’s explanation for both periods of delay lack ed either particularity
or substantiation.
[18] Insofar as the delay in having initiated the application was concerned, he stated
that he received the award on 28 August 2018 and approached the Durban
Justice Centre for assistance two weeks later , although the precise date on
which he did so was not specified. He said that he could not locate the attorney
allocated to his matter when he went to the address which had been provided
to him (which address was not specified), and returned to the Durban Justice
Centre. Again the date or dates on which these attempts were made was not
specified. On his own version, he did not obtain a new address or contact
specified. On his own version, he did not obtain a new address or contact
details for the attorney from the Durban Justice Centre on his last visit, but
seemingly then contented himself awaiting a call from that attorney . When
such a call was received on 26 October 2018, timeo us initiation of the review
1 Section 145(1)(a) of the LRA
2 Clause 11.2.2 of the Practice Manual of the Labour Court then in force.
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application was no longer possible. Having consulted with the attorney on a
date unspecified, the applicant alleged that he made ‘numerous’ telephone
calls to him during which he was advised that his matter was being attended to.
He eventually deposed to the founding affidavit (without a condonation
application) on 8 January 2019. The application was launched more than two
weeks later on 24 January 2019, although he could not explain the cause of
that further delay.
[19] Thereafter the applicant alleged that he had difficulty contacting Mr Mbili, who
neither took nor returned his calls. Despite this, it was only one and a half
years later in June 2020 when he finally returned to the Duban Justice Centre
to complain about the lack of attention to his matter. Whether he requested
that another attorney be assigned to his matter, or that suggestion came from
an official in the Durban Justice Centre was not explained, however, it was the
applicant’s further version that he kept making enquiries thereafter as to
whether his matter had been reassigned. It was only in December 2020 that he
was told that such a process had commenced; in January 2021 that funding for
such process had been approved ; and in February 2021 that he was informed
that his present attorneys had been appointed.
[20] He consulted with Mr Mpanza on 17 February 2021 during the course of which
consultation Mr Mpanza advised him that he would attend to the Notice of
Appointment as attorney or record, and would attend this court to uplift the
record of the arbitration proceedings for the purposes of obtaining a
transcription. Whilst the transcription of the oral evidence was completed on 20
September 2021, this court was not taken into the applicant’s confidence as to
when the record had been uplifted for that purpose. The totality of the
explanation furnished for that part of the delay was occasioned as a result of
‘Covid 19 associated Lockdown regulations.’
‘Covid 19 associated Lockdown regulations.’
[21] With the record having been transcribed, the applicant consulted with Mr
Mpanza on 6 October 2021, at which consultation he was provided with a copy
of the transcribed record for his consideration with a view to delivering a
supplementary affidavit in the review application. He explained that it took him
8
‘a while’ to consider the record although no supplementary affidavit was ever
delivered. In February 2022 he once again consulted with Mr Mpanza
concerning the present application. On 17 February 2022 he deposed to the
affidavit in the present application which was then initiated, despite that the
record had still not then been delivered.
[22] The record was eventually delivered on 16 November 2023.
[23] This court is of the view that neither period of delay , both of which were
excessive, has been adequately explained, in circumstances in which the
delays were inordinate. Vast periods of time were wholly unexplained. Where
events were described, they were described arcanely, devoid of any
particularity and wholly unsubstantiated by extraneous, objective evidence.
Considered holistically, the totality of the actions undertaken by the applicant
since having received the award are inimical to those of a diligent litigant.
[24] Compounding the inadequacy of the applicant’s explanations for the delays in
initiating the review application, delivering the record, and having failed to take
any steps in the prosecution of the application for extended periods of time, is
the fact that the applicant has no demonstrable prospects of success in the
review application.
[25] In having considered the question of the substantive fairness of the applicant’s
dismissal the second respondent assessed the evidence of the first
respondent’s witnesses on the one hand, and the applicant’s evidence on the
other. The evidence unequivocally demonstrated that Mr Graham Goliath, one
of the applicant’s subordinates, was found to have been present at a house
owned by the applicant during working hours, then working on a faulty gate
motor. Mr Goliath testified that the applicant had requested he repair it, and Mr
Ngcobo testified that he had overheard the applicant make such a request.
The applicant’s version was rejected as having been contradictory of his
previous versions, and improbable.
previous versions, and improbable.
[26] Beyond having referred this court to the allegations made by him in his review
application, the applicant did not address his prospects of success in the
9
present application. Despite the time taken by the applicant to consider the
transcribed record, for the specific purpose of identifying ‘further’ grounds of
review, no supplementary affidavit was delivered and his grounds of review
were to be gleaned from his founding affidavit alone. Putting aside for the
moment that it is inappropriate to deal with the issue of the prospects of
success by reference to another affidavit , and this court having considered
such affidavit, nothing contained therein evinces a basis upon which this court
could interfere with the second respondent’s award.
[27] The applicant’s founding affidavit in his review application simply stated,
‘5.
The Arbitrator’s Award, The Purpose of this Application and Grounds upon which
Relief is Sought
• The matter relates to the dismissal of the Applicant for misconduct.
• The applicant was charged with one count of misconduct in that he instructed a
staff member to carry out private work at the Applicant’s house during working
hours using municipal equipment and tools.
• The applicant denies having sent or instructed a staff member to his private
property, the Applicant believes that his dismissal was as a result of a
conspiracy.
The arbitrator, without showing evidence accepted the above as good cause shown by
the First Respondent to dismiss the Applicant.
6.
The Arbitrator shies away from material facts and makes findings that an objective
decision maker would not make.
7.
It is submitted that the Third Respondent [sic] is in conflict with the behests of the Act
handed down an Award which was not an Award or [sic] a reasonable and objective
decision maker in that:
7.1 Found the dismissal to be fair and appropriate sanction.
7.2 Finding that alleged conduct warranted a dismissal.
10
It is my belief that the arbitrator’s Award is that not of a reasonable and objective
decision maker and was unjustifiable in relation to the reasons advanced and
accordingly the arbitrator exceed his powers in terms of section 145(2)(a)(i)(ii)(iii) and
or (b) of the Act and has committed gross irregularity in conduct of the proceedings
including making mistakes of law, resulting in his misconceiving the nature of the
enquiry, accordingly justifying the reviewing and setting aside, alternatively correcting
of the Award handed down by him.’
[28] It is self-evident that nothing stated in the applicant’s founding affidavit evinces
any specific complaint regarding the manner in which the second respondent
dealt with either the evidence or the law; the applicant did no more than
express generic complaints raised in review applications, without amplification
or explanation, wholly unrelated to the actual evidence before the second
respondent or the resultant award.
[29] On the face of it, the second respondent’s conclusions appear to be well
reasoned in relation to the issues which she was required to determine, and no
issue may be taken with the manner in which she assessed the evidence, or
her understanding of the law in relation to the issues she was required to
decide. This being the case, and the applicant having failed to identify any
specific failing on her part, this court cannot find that he enjoys any possible
prospects of success in his review application.
[30] Additionally, where the gist of the applicant’s complaint appears to have been
that the second respondent ought to have concluded that he had not been
guilty of the misconduct in question, and rather that his co- workers had
conspired to orchestrate his dismissal, it was crucial for him to have placed the
reviewing court in possession of the complete record of the arbitration, which
he did not. The record which was ultimately delivered constituted the
he did not. The record which was ultimately delivered constituted the
transcribed portion only, and excluded the documentary evidence relied upon
by the first respondent. That documentary evidence included photographs
taken of Mr Goliath on the day of the incident at the applicant’s house together
with the first respondent’s tools and vehicle. It also included the full
transcription of the first arbitration as well as such partial transcription of the
second arbitration as had then been available. These documents were relied
11
upon by the first respondent in support of its case that the applicant’s dismissal
had been substantively fair. Even if a cogent ground of review could be distilled
from the applicant’s founding affidavit, his failure to have included such
evidence negates the ability of a court in due course to assess the
reasonableness of the second respondent’s conclusions in relation to the
evidence before her.
[31] Without any possible prospects of success, the issue of possible prejudice to
the applicant does not arise. On the other hand, the first respondent took what
appears to have been a fair decision to terminate the applicant’s services in
2018 and has, since then, been bound to commit itself and the public funds at
its disposal to the applicant’s ongoing litigation. In the absence of any reason
to re-instate the review application, the first respondent is entitled to finality.
[32] In consideration of the applications before this court, the application to re-
instate the review application will be dismissed. The review application not
having been re- instated, the issue of condonation for the late initiation of the
review application itself will not be decided.
Costs
[33] Albeit that the first respondent asked in its answering affidavit that the
application be dismissed, with costs, the failure on the part of the first
respondent to have delivered heads of argument or to appear at the hearing of
the matter meant that its request could not be canvassed with its
representative. This court will accordingly follow the usual practice that each
party will be required to bear its own costs.
Order
1. The application to re-instate the review application is dismissed.
2. There is no order as to costs.
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________________________
ALLEN-YAMAN J
Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr D Mpanza, Mpanza & Associates Inc
First Respondent:
No appearance