THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR1355/22
In the matter between:
SAINT GOBAIN (GYPROC) BRAKPAN Applicant
and
EVAH NGOBENI, N.O First
Respondent
THE NATIONAL BARGAINING COUNCIL
FOR THE CHEMICAL INDUSTRY Second
Respondent
JAMES MUNYAI & 3 OTHERS Third
Respondent
Heard: 6 November 2025
Date delivered: 27 February 2026
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
This judgment was handed down electronically by circulation to the parties and legal
representatives by email. The date and time for hand- down is deemed to be 27
February 2026.
Summary: Application for reinstatement of review application placed in archives .
60 day period in terms of the Practice Manual runs from date of the Rule 7A(5)
notice. Not necessary to apply for condonation. If condonation is considered,
grounds for condonation exist and condonation granted. Also competent for parties
to agree to further extension(s) to file the record if record not filed within previous
extended period(s).
JUDGMENT
___________________________________________________________________
SAVANT, AJ
Introduction
[1] This is an opposed application in terms of section 158(1)(a) of the Labour
Relations Act
1 (LRA) and clause 16.2 of the 2013 Labour Court Practice
Manual (“Practice Manual”). The applicant seeks to reinstate its lapsed review
application filed on 24 July 2022 under the above case number, in terms of
clause 11.2.3 of the Practice Manual. In its review application, the applicant
seeks to review and set aside an arbitration award (“award”) issued by the
second respondent, the National Bargaining Council for the Chemical Industry
(“bargaining council”) under case number GAEK96- 20 in favour of the third
respondents on 10 May 2022.
Background
1 No. 66 of 1995, as amended.
[2] The applicant dismissed Mr. James Munyai , a former maintenance foreman
for permitting Messrs. Jeremia Mtaki, Richard Marriot and Hennie
Redelinghuys (hereinafter referred to as the “third respondents”) to exceed
the requisite overtime limit. The applicant dismissed Messrs. Mtaki, Marriot
and Redelinghuys for continuously working excessive overtime hours through
callouts in collusion with Mr. Munyai.
[3] In terms of the award, the first respondent (“arbitrator”) found that the third
respondents did not commit the alleged misconduct. The arbitrator ordered
their reinstatement, and for the respondent to pay them backpay equivalent to
16 months of remuneration.
[4] The applicant avers that it failed to comply with clause 11.2.2 of the Practice
Manual. Clause 11.2.2 of the Practice Manual requires the review record to be
filed within 60 days of the date on which the applicant is advised by the
Registrar that the record is received.
[5] On 8 July 2022, the bargaining council sent correspondence to the applicant’s
attorneys and to the Labour Court in terms of Rule 7A(2) and (3) of the then
Labour Court Rules, notifying the applicant and the Registrar that the
bargaining council files the arbitration record.
[6] There was no notice, at least at that stage, sent by the Registrar in terms of
Rule 7A(5) notifying the applicant that the record has been received and may
be uplifted (per clause 11.2.1 of the Practice Manual).
[7] Nonetheless, on 18 July 2022, the applicant collected the record from the
Labour Court. The applicant thereafter took steps to transcribe and file the
record. The applicant calculated the 60-day period referred to in clause 11.2.2
of the Practice Manual to run from the date that it uplifted the record from the
Labour Court (i.e., from 18 July 2022). Working with this calculation, it was
due to be filed by 10 October 2022.
[8] The applicant received the transcribed record of the arbitration proceedings
during late September 2022. It states that “transcriptions were quite
voluminous, consisting over 740 (seven hundred and forty) pages, and of poor
sound quality”. It ascertained that about 3 or 4 days of evidence was missing,
noting that arbitration was heard over various days between July 2020 and
April 2022.
[9] The applicant accordingly secured an extension from the third respondent s’
representative, the General Industries Workers Union of South Africa
(“GIWUSA”) to file the record by 4 November 2022. I pause to mention that
during this time, all or some of the third respondents were represented by
GIWUSA. The applicant also managed to obtain missing portions of the
record from the b argaining council. O n 12 October 2022, the Registrar
furnished a notice in terms of Rule 7A(5) to the applicant. The applicant then
took steps to obtain the missing portions of the record from the Labour Court
and transcribe them.
[10] After obtaining a quotation to transcribe the missing portions of the record on
18 October 2022, the applicant’s attorney made internal queries following up
on the status of the transcription thereof. It appears that there was a delay in
the applicant paying the transcribers to transcribe the missing portions of the
record. The applicant avers that it requested “to be facilitated” on 19 October
2022 but this request “landed upon on the desk of a person that was no
longer employed” by the applicant. Ultimately, the transcribers were paid, and
the missing portions, transcribed.
[11] The applicant sent proof of payment (to the transcribers) to its attorneys on
9 November 2022. Around this time, GIWUSA sent a letter to the applicant’s
attorneys, stating that because the record was not filed by 4 November 2022
(i.e., the extended period agreed to by the parties to file the record), the
review application was “deemed to have been withdrawn” in terms of clause
review application was “deemed to have been withdrawn” in terms of clause
11.2.3 of the Practice Manual. GIWUSA stated further that if the applicant
refuses to reinstate its members, it will institute contempt proceedings against
the applicant’s Chief Executive Officer and its Human Resources Manager.
The applicant’s attorney states that he did not request a further extension
before 4 November 2022, due to a very heavy workload.
[12] On 16 November 2022, the applicant filed the incomplete record. On
23 November 2022, GIWUSA emailed the applicant’s attorney complaining
that the applicant filed the incomplete record. That same day (23 September
2022), the applicant’s attorney emailed GIWUSA, explaining that the
outstanding portion of the record was sent to the transcribers, which
comprises of approximately 4 more days of evidence and of an inspection in
loco. The applicant’s attorney also mentioned that he expected to receive the
complete record by the beginning of December 2022 and that he intended to
file a reinstatement application and a condonation application for the late filing
of the record.
[13] On 24 November 2022, GIWUSA emailed the applicant’s attorney, stating that
it empathises with his predicament but that his request for a further extension
should have been made prior to 4 November 2022. GIWUSA stated further
that there was no review application currently before the Labour Court.
[14] On 6 December 2022, the transcribers completed transcribing the remaining
portions of the record, consisting of over 640 pages, which was delivered on
8 December 2022. Working with the date agreed to by the parties of
4 November 2022, when the record was meant to be filed, the record was
thus filed appropriately 27 days late.
[15] It should also be noted that GIWUSA filed an answering affidavit to the
applicant’s reinstatement application on 10 January 2023, seemingly on
behalf of all of the third respondents. Two of the third respondents filed a
further answering affidavit on 26 July 2023, namely, Messrs. Marriot and
Redelinghuis. They have sought leave of this court to do so and there was no
objection from the applicant. Accordingly, I consider the second answering
affidavit properly before this court. I note that Messrs. Marriot and
affidavit properly before this court. I note that Messrs. Marriot and
Redelinghuis state in their answering affidavit that they wish “to add” to the
first answering affidavit. For convenience, I therefore do not distinguish
between the two answering affidavits filed by the third respondents for
purposes of this judgment, unless specific reference is given to either of the
answering affidavits . For convenience, unless indicated otherwise, I also do
not distinguish between Messrs. Marriot and Redelinghuis from the other third
respondents.
Evaluation
When did the 60-day period commence?
[16] As stated above, on 8 July 2022, the b argaining council notified the applicant
and the Registrar that it filed the record. The applicant collected the record
from the Labour Court on 18 July 2022. At the time, the Registrar had not filed
a Rule 7A(5) notice. Nonetheless, the applicant assumed that the 60- day
period commenced from th e date that it uplifted the record (i.e., from 18 July
2022).
[17] I s this assumption correct? In my view, it is not. Clause 11.2.2 of the Practice
Manual states that: “…records must be filed within 60 days of the date on
which the applicant is advised by the registrar that the record has been
received” [added emphasis]. Clause 11.2.1 provides that the applicant must
uplift the record within seven days of the Registrar notifying the applicant that
the record has been received. I note that the new Labour Court Rules contain
similar wording. In terms of the new Labour Court Rules, the period to
transcribe the record commences when the Registrar informs the applicant
that the record is ready for collection.
2
[18] The Supreme Court of Appeal in Natal Joint Municipal Pension Fund v
Endumeni Municipality3 has held that:
“The present state of the law can be expressed as follows. Interpretation is
the process of attributing meaning to the words used in a document, be it
2 See inter alia Rule 37(9), (10) and (14).
3 (2012) 2 All SA 262 (SCA) at para 18.
legislation, some other statutory instrument, or contract, having regard to the
context provided by reading the particular provision or provisions in the light
of the document as a whole and the circumstances attendant upon its coming
into existence. Whatever the nature of the document, consideration must be
given to the language used in the light of the ordinary rules of grammar and
syntax; the context in which the provision appears; the apparent purpose to
which it is directed and the material known to those responsible for its
production. Where more than one meaning is possible each possibility must
be weighed in the light of all these factors. The process is objective not
subjective. A sensible meaning is to be preferred to one that leads to
insensible or unbusinesslike results or undermines the apparent purpose of
the document. Judges must be alert to, and guard against, the temptation to
substitute what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in regard to a statute or statutory instrument is
to cross the divide between interpretation and legislation. In a contractual
context it is to make a contract for the parties other than the one they in fact
made. The ‘inevitable point of departure is the language of the provision
itself’, read in context and having regard to the purpose of the provision and
the background to the preparation and production of the document.” [added
emphasis]
[19] The Constitutional Court has stated that the approach to ( statutory)
interpretation is a “unitary” exercise, meaning that “interpretation is to be
approached holistically: simultaneously considering the text, context and
purpose”.
4
[20] In my view, there is no ambiguity in the Practice Manual when the 60- day
period commences for purposes of filing the record. Clauses 11.2.1 and
11.2.2 are clear. Clauses 1.1 and 1.3 of the Practice Manual, in the context of
its purpose, state that:
its purpose, state that:
“This practice manual is modelled on similar manuals that apply in various
Divisions of the High Court. The manual aims to promote access to justice by
all those whom the Labour Court serves. It is also intended to promote
4 University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA 1 (CC)
(11 June 2021) at para 65.
consistency in practice and procedure, and to set guidelines on the standards
of conduct expected of those who practise in the Labour Court.
The manual addresses the need to maintain respect for the court as an
institution, and to promote efficiency in the adjudication of disputes. It is
hoped that the practice manual will also improve the quality of the court’s
service to the public, and promote the statutory imperative of expeditious
dispute resolution.”
[21] The promotion of consistency in practice and procedure and expeditious
dispute resolution is evident through various clauses in the Practice Manual
regulating strict time periods for the prosecution of matters.
[22] Furthermore, whilst collecting a record without notification from the Registrar
may, depending on the circumstances, be commendable and encouraged, the
periods within which to uplift and file records in terms of clauses 11.2.1 and
11.2.2 (once notified by the Registrar) are meant to allow for easier oversight
whether an applicant has complied with those time frames (as opposed to
when an applicant uplifts the record, possibly in circumstances absent
notification from the Registrar). Presumably, clauses 11.2.1 and 11.2.2 were
also intended to assist the Registrar with internal monitoring and/or for
administrative processes.
[23] Of course, this does not mean that a litigant must take a nonchalant approach
or do nothing if the record is not forthcoming or that a litigant must necessarily
await the Rule 7A(5) notice after the CCMA or relevant bargaining council files
the record. Appropriate steps must be taken to avoid falling foul of the
relevant time periods, such as in terms of the Practice Manual to avoid the
matter being deemed withdrawn and/or placed in archives, etc.
[24] As the rule 7A(5) notice was served on the applicant on 12 October 2022 and
the record was filed within 60 days from that date, there was no need for the
applicant to have filed its reinstatement application.
Condonation
[25] However, to the extent that I am incorrect, I turn to consider the applicant’s
reinstatement application.
[26] The Labour Appeal Court (“LAC”) in Samuels v Old Mutual Bank
5 has held
that:
“In essence, an application for the retrieval of a file from the archives is a form
of an application for condonation for failure to comply with the Court Rules,
timeframes and directives. Showing good cause demands that the application
be bona fide; that the applicant provide a reasonable explanation which
covers the entire period of the default; and show that he/she has reasonable
prospects of success in the main application, and lastly, that it is in the
interest of justice to grant the order. It has to be noted that it is not a
requirement that the applicant must deal fully with the merits of the dispute to
establish reasonable prospects of success. It is sufficient to set out facts
which, if established would result in his/her success. In the end, the decision
to grant or refuse condonation is a discretion to be exercised by the court
hearing the application which must be judiciously exercised.”
Extent of and explanation for the delay
[27] As mentioned above, by agreement between the parties, the record was due
to be filed by 4 November 2022. However, it was only filed on 8 December
2022. In Overberg District Municipality v IMATU obo Spangenberg & others
6
the review record was due to be filed by 7 June 2018 but was only filed on 8
July 2018. Working with a similar time frame, the court held that the delay
was about a third longer than the stipulated deadline and w as of the view that
5 (2017) 38 ILJ 1790 (LAC) at para 17.
6 (2021) 42 ILJ 1283 (LC).
it was a “significant delay, but not notably excessive”. I align with these
sentiments. Whilst the delay is not minor, it is not unduly excessive.
[28] Insofar as the reasons for the delay in filing the record are concerned,
although further clarity could have been furnished in respect of some of the
time periods, I am satisfied that the applicant was not tardy in taking steps to
file the record and presented a reasonable explanation for the late filing of the
record. The time taken to transcribe the record, including its missing portions
is not out of the ordinary, or unreasonable.
[29] However, i t bears mentioning that although GIWUSA took issue with the
applicant for failing to timeously file the record by the agreed date, being
4 November 2022, it is unfortunate that the parties did not attempt to agree to
a further extension within which the applicant could have filed the record. It
appears that the parties were under the misapprehension that the applicant
needed to request a further extension from the respondent before the expiry
of the extended agreed time frame ( i.e., before 4 November 2022). After
GIWUSA sent a letter to the applicant’s attorneys on 8 November 2022
complaining that the record was not filed and threatening contempt
proceedings, the applicant filed an incomplete record. On 24 November 2022,
GIWUSA emailed the applicant’s attorney, stating that a request for a f urther
extension should have been made prior to 4 November 2022. It appears that
the applicant was also of the view that it was required to request the third
respondent’s consent prior to the expiry of 4 November 2022.
[30] I do not believe that it was only competent for the applicant to request the
third respondents’ consent prior to the expiry of the extended time frame (i.e.,
prior to 4 November 2022). Clause 11.2. 2 of the Practice Manual states that
records must be filed within 60 days of the date on which the applicant is
records must be filed within 60 days of the date on which the applicant is
advised that the record has been received. Clause 11.2.3 provides that the
applicant will be deemed to have withdrawn the application, unless the
applicant has during the “prescribed period” requested the opponent’s
consent for an extension of time. If consent is refused, the applicant may
apply to the Judge President in chambers for an extension of time. The
prescribed period referred to here is the 60- day period (referred to in clause
11.2.2). To illustrate this point, it may not be practicable to apply to the Judge
President if an applicant requires 1 or 2 extra days to file a record over and
above an agreed extended time frame. In other words, the spirit of the
Practice Manual did not bar the parties from agreeing to further time periods,
if need be, after the expiry of an extended time frame or time frames . This is
in line with clause 1.3 of the Practice Manual, which is to “promote efficiency
in the adjudication of disputes” and to “the statutory imperative of expedit ious
dispute resolution”, especially considering this court’s general backlog for the
finalisation of disputes. Thus, had the parties further engaged on an extended
time frame within which the record could have been filed, it may have averted
this application altogether and a significant delay in the finalisation of the
review application, assuming the applicant’s reinstatement application is
successful. This is not to suggest that extended time frames should always be
agreed.
Prejudice
[31] The applicant submits that it will be unduly prejudiced should its reinstatement
application be dismissed. In support of this contention, it submits that if its
application is granted, the third respondents can still oppose the review
application. On the other hand, the applicant would be saddled with an
arbitration award in favour of the third respondents and with substantial
associated financial liability, without any further recourse. The applicant also
argues that the delay is not of such a magnitude that it would cause undue
prejudice to the third respondents.
[32] The third respondents contend that the “balance of prejudice” favour them .
The third respondents aver that they should not have to defend a review
application lacking in merit. Mr. Redelinghuis, who deposed to the second
answering affidavit, states that he has been unemployed since his dismissal.
answering affidavit, states that he has been unemployed since his dismissal.
He also refers to various financial hardships faced by him and his family.
[33] Whilst I have no doubt that the third respondents are experiencing prejudice in
some manner or form , especially Mr. Redelinghuis , I tend to agree with the
applicant that if its reinstatement application is granted, the third respondents
would still have an opportunity still to defend the review application.
Furthermore, although the parties were under no legal obligation to do so, had
the parties agreed to a further extension to file the record, in all probability,
finality would have been reached in the matter by now and/or it would have
averted a significant delay.
Incomplete record
[34] The third respondents averred that various portions of the record were not
filed. They urged this court to dismiss the reinstatement application in that a
complete record has not been filed. Mr. Lennox for the applicant argued that
the applicant’s review application stands and falls by the record that has been
filed. The applicant argued that the question regarding the adequacy of the
record would be best be answered by this court if and when the review
application is determined. I agree with the applicant that it would not be
appropriate to dismiss its reinstatement application over the missing portions
of the record. The review court would be best placed to deal with that issue.
Prospects of success
[35] As held by the LAC in Samuels , the applicant need not fully deal with the
merits of the dispute to establish reasonable prospects of success. It is
sufficient for it to set out facts which, if established would result in its success.
This court has also referred to this test setting a “relatively low threshold”.
7
[36] The applicant contends that the award stands to be reviewed and set aside in
that the arbitrator reached a decision that a reasonable decision maker could
not reach.
7 At para 64 of Overberg.
[37] The applicant in its founding affidavit to its review application, which it has
incorporated into its reinstatement application, avers that the arbitrator
ignored its evidence that there was a “persistent pattern and collusion
between Munyai and the other three Respondents to have them benefit
financially from the overtime in breach of the Applicant’s rule”. It states inter
alia that Mr. Munyai was responsible for rostering employs who could be on
standby in the event of a callout and that he scheduled Messrs. Redelinghuis,
Marriot and Mtaki almost exclusively to attend to callouts under suspicious
circumstances.
[38] In the third respondents’ answering affidavit in the review, which has been
incorporated to the second answering affidavit in the reinstatement
application, the third respondents aver that since they “were unaware that
callouts or being on standby count as overtime, they could not have intended
to evade the relevant prohibition…”. They aver further that it follows that Mr.
Munyai therefore unintentionally surpassed the overtime threshold. In the
third respondents’ heads of argument (filed by Messrs. Redeli nghuis and
Marriot), with reference to the award, they state that one of the applicant’s
witnesses, Ms. Gill Abrahams, an administrator, corroborated the third
respondents’ version that a callout and overtime were added together after
charges were levelled against them, and that overtime did not incorporate a
callout.
[39] In the third respondents’ answering affidavit in the review, they do not seem to
dispute that Mr. Munyai was responsible for rostering Messrs. Redelinghuis ,
Marriot and Mtaki for callouts. They state that inter alia that “responding to a
call-out is not suspicious and requires no explanation apart from an employee
obeying an order issued by their ‘superior’”. However, in the third
respondents above heads of argument, they contend, again, with reference to
respondents above heads of argument, they contend, again, with reference to
the award, that the evidence confirmed that Mr. Munyai did not roster the third
respondents for callouts. Rather, it was done by others.
[40] The applicant also submits that the arbitrator’s finding that the applicant
applied discipline inconsistently , is unreasonable on the evidence and could
not have been reached by another reasonable decision maker. The arbitrator
found that it is trite that the third respondents had to prove that the applicant
applied discipline inconsistently and that the applicant had to “justify the
deviation”. The applicant concurs with this finding and submits that the third
respondents did not meet this onus in that they did not submit any evidence
that other employees committed the same offence.
[41] The third respondents raised the issue of inconsistency, providing specific
examples thereto, apparently only while cross -examining the applicant’s
witnesses.
[42] All in all, I believe that the applicant has set out sufficient facts, which “ if
established”, will result in its success in the review, particularly with reference
to its contention that there may have been collusion between the third
respondents concerning the amount of possible overtime worked. I express
some reservations regarding the applicant’s inconsistency argument in that
the applicant agrees with the arbitrator’s finding that the third respondents had
to prove that the applicant applied discipline inconsistently. S uch an onus is
at odds with the LAC’s finding that employees ought to only raise the issue of
inconsistency, though “openly and unequivocally so that the employer is put
on proper and fair terms to address it”.
8 As mentioned, it appears that the
third respondents only raised the issue of inconsistency when cross -
examining the applicant’s witnesses. Nonetheless, the review court will best
be placed to deal with this issue in due course, if condonation is granted.
[43] On a conspectus of the above, I believe that it will be in the interest of justice
for the applicant’s review application to be reinstated. The applicant has
rightly so in my view, not persisted with seeking costs against the third
rightly so in my view, not persisted with seeking costs against the third
respondents.
8 NUM on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section) (2014) 35 ILJ 2406 (LAC) at
para 39.
[44] In the premises, the following order is made:
Order
1. The applicant’s review application under the above case number is
removed from archives and/or is reinstated.
2. There is no order as to costs.
_______________________
MI Savant
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant: Advocate MA Lennox
Instructed by: Snyman Attorneys
For the third respondents
(Messrs. Redelinghuis & Marriot): Advocate C de Kock & Advocate D Seale
Instructed by: Carelse Khan Inc. t/a CK Attorneys
For the further third respondents
(Messrs. Munyai and Mtaki): No appearance