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[2026] ZALCCT 77
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Landmark Foundation Trust v Commission for Conciliation, Mediation and Others (C245/24) [2026] ZALCCT 77 (13 May 2026)
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THE LABOUR COURT OF
SOUTH AFRICA,
HELD
AT CAPE TOWN
Not
reportable
Case
Co: C245/24
In the matter
between:
THE
LANDMARK FOUNDATION TRUST
Applicant
and
COMMISSION
FOR CONCILATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
FRANCOIS VAN DER MERWE
Second
Respondent
MATTHEW
SCHURCH
Third
Respondent
Date
of Hearing:
24 February 2026
Date
of Judgment:
13 May 2026
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 4 October
2025.
JUDGMENT
V BARTHUS AJ
[1]
This is an application to compel the First
Respondent (“the CCMA”) to deliver the complete record of
arbitration proceedings
concluded on 26 March 2024. Alternatively,
the Applicant is seeking an order directing the CCMA to reconstruct
what it alleges
to be missing parts of the record and for the matter
to be referred to Chambers for judicial case management.
[2]
The Applicant’s representative, Dr
Boudewyn Homburg de Vries Smuts (“Smuts”), the
Applicant’s General Manager,
was mandated by the Applicant's
trustees to represent the Applicant.
[3]
The Third Respondent opposes this
application, challenging its
bona fides
and seeking the dismissal of the application and the immediate
prosecution of the review, alternatively the archival of the review.
[4]
While relief is sought against the CCMA and
the Arbitrator, the Third Respondent has comprehensively explained in
the condonation
application why he was forced to engage this process
in the interest of progressing the review of the award delivered in
his favour
on 6 April 2024.
[5]
I am satisfied that the Third Respondent
has made out a proper case for condonation and that, as the
successful party in the arbitration
proceedings, he has a direct
interest in the resolution of the review application and therefore an
interest in opposing this application
to compel. If the Third
Respondent did not engage this application, then the review
application would ultimately be left in limbo
since the First and
Second Respondents have filed affidavits confirming their compliance
and have no further submissions to make.
[6]
The Applicant has unpersuasively contended
for this application to be dealt with on an unopposed basis.
[7]
While
it is the duty of the applicant in a review application to furnish
the other parties and the Registrar with a copy of the
record,
necessary for purposes of the review, there is a distinction to be
drawn between a scenario where the record is available
but the
applicant did nothing to have it transcribed and filed, and a
scenario where the applicant made serious attempts to file
the
record, but cannot do so because the record either does not exist or
is not made available
[1]
.
[8]
There is a third scenario where the record
is available, but the applicant asserts that it has not been
furnished with the complete
record, solely to delay execution of the
arbitration award. The Third Respondent’s opposition to this
application to compel
is premised on the third scenario.
[9]
The CCMA and the Second Respondent (“the
Arbitrator”) have confirmed that they have complied with their
obligations
under s 145 of the LRA. Commissioner Samuel, on behalf of
the CCMA, has filed a sworn statement, accompanied by the
confirmation
of the review administrator and the sworn statement of
the Arbitrator confirming that the entire record was made available.
The
Arbitrator further confirmed that ‘
there
is no need for any reconstruction for any part of the record’.
[10]
Confirmation was provided that the
Arbitrator was properly appointed to adjudicate the dispute through
arbitration- something Smuts
insisted on proof of.
[11]
Smuts has asserted repeatedly that there is
a conspiracy against the Applicant whereby the CCMA is colluding with
the Third Respondent.
There is no evidence or motive to support this
assertion.
[12]
Smuts further contends that the CCMA has
sanitised the record to exclude the portions of it that support the
allegations of bias,
which form the basis of the review application.
The “sanitised” portions comprise verbal exchanges that
are not part
of the proceedings.
[13]
The CCMA proposed a meeting to resolve any
misunderstanding concerning the record- an offer which Smuts rejected
out of hand.
[14]
The Third Respondent submitted in its
papers and in argument that the electronic record received from the
CCMA was sent to Smuts
via WeTransfer to allow him to vet the
contents and satisfy himself that what he received from the CCMA
accorded with what the
Third Respondent had received.
[15]
Smuts has based the Applicant’s case
against the CCMA entirely on collusion and conspiracy, yet when he
was allowed to verify
that the record received by the Third Applicant
resembled what he had received, he did not check. Smuts asserted that
he was doing
field work at the time and that the link to the file had
expired. The Third Respondent, aware of the time bar for access, sent
the link a second time and again Smuts elected not to access the
link.
[16]
Pursuant to the Court’s question
regarding Smuts’ election not to assess the WeTransfer file,
Smuts asserted that the
Court had already predetermined the case
against the Applicant. There was no basis for this assertion.
[17]
I have considered the record of
correspondence between the CCMA and Smuts and the correspondence
between Smuts and the Third Respondent’s
attorney. The tone and
content of these communications are concerning in relation to Smuts.
The CCMA and the Third Respondent’s
attorney have clearly
attempted to help the Applicant in prosecuting the review. The Third
Respondent has argued that “
the
Applicant’s goal is not to be helped; it is to create the
impression that help has been refused
”.
I am inclined to agree with this conclusion based on all the
correspondence on record.
[18]
The correspondence by Smuts on behalf of
the Applicant is best characterised as combative and discourteous,
with Smuts persistently
casting aspersions on the CCMA and its
officials. Smuts has made no effort to engage constructively since
the initial assertion
about an incomplete record. The strategy is
clear: fight every procedural inch to kick the proverbial can as far
down the road
as possible, avoiding prosecution of the review
application while wearing down and draining the opposition's
resources.
[19]
This is a flagrant abuse of court process,
which flies in the face of the tenets of the Labour Relations Act and
cannot be enabled
or entertained beyond this point.
[20]
The relief the Applicant seeks is
incompetent since all indications are that the Respondents have
complied with their obligations
to make the complete record
available.
[21]
In the premises, the following order is
made:
Order:
1.
The application is dismissed.
2.
The Applicant shall file the record within
14 days of this order and shall supplement its papers within 10 days,
failing which the
Registrar is directed to archive the court file.
3.
The Applicant is ordered to pay the Third
Respondent’s costs.
V Barthus AJ
Acting Judge of the
Labour Court of South Africa
Representatives:
For the Applicant: Dr B
Smuts (The General Manager appointed by the Applicant’s
Trustees)
For the Respondent: S
Moreland
Instructed
by Guy and Associates
[1]
South
African Social Security Agency v Hartley and Others (2023) 44 ILJ
1334 (LC) par 67