(I) Reportable: NO
(2) Of interest to other Judges: Yes
18 May2026
Date
IN THE LABOUR COURT OF SOUTH AFRIC~
HELD AT CAPE TOWN
In the matter between:
SANDRA NOELENE OPPERMAN
and
PUBLIC HEA LOPMENT
SECTOR IA UNCIL
02 July 2025
18 May 2026
BANDERKER, AJ
JUDGMENT
Applicant
First Respondent
Second Respondent
Third Respondent
2
INTRODUCTION
[1] In Lynch & Co v United States Fidelity & Fidelity Guarantee Co, it was held
per Fraser J as follows:
[2]
[3
" ' Dishonest ' is normally used to describe an act where the e has been
some intent to deceive or cheat. To use it to describe acts tlich are
merely reckless, disobedient or foolish is not in aca
usage or the dictionary meaning. "1
In Amcu obo Thlanganyane v Beesnaar NO Settte
"In dissecting the word dishon s , actu reus (physical conduct) and
mens rea (mental element) mu . he presence of actus reus
and mens rea denotes that a perso purposefully acts with an intent to
achieve a certain desired outcome for his or her benefit at the detriment
as employed at the George Hospital, Western
Cape, as an dministrative clerk. Applicant, at the time of the incident which
res , was in the employ of the First Respondent for more
t ad an unblemished employment record.
It was alleged that on the 7th March 2019, the Applicant was performing her
duties as an administrative clerk when a cellular phone was placed in front of
er in the admissions area. It later emerged that the said cellular phone ('cell
phone') belonged to a Mr Wagenaar who was on the relevant date and time
delivered some item to the George Hospital. It appears that Mr Wagenaar
1 Lynch & Co v United States Fidelity & Fidelity Guarantee Co [1971] 1 OR 28 at 37, 38
2 Amcu obo Thlanganyane v Beesnaar NO (2023) 44 ILJ 2210 (LC) Judgment dated 6th July 2023
3
during the process of his delivery left his cell phone on the desk and area
where the Applicant was performing duties.
[4] It appears that the First Respondent has a procedure in place when valuables
of patients are handed in and/or lost. The First Respondent's procedure
entails such property to be placed in a safe for safekeeping. Ostensibly such
property is/are returned to its rightful owners upon request and/or enquiry at
the George Hospital.
ISSUES TO BE DETERMINED
[5] The applicant filed an application for condonatio
rules of this Honourable Court for:
(a) her failure to file her review.
period; and
(b) her condonation agfi)lication served and filed on the 4th April 2024.3
[6] It is common caus January 2020 the Applicant delivered an
[7]
application • a I0n award dated 28th October 2019. Applicant
be reviewed and set aside, essentially as the
arbi no reasonable arbitrator could have reached.
cant asserts that she instructed her erstwhile attorneys or
renor: , Jansen and Samson Attorneys to assist her in her review application.
Applicant asserts further that after the erstwhile attorneys Messrs Jansen and
amson Attorneys proceeded to institute aforegoing legal proceedings on her
behalf she was unable to obtain satisfactory response from them. This
despite, Applicant avers, paying Messrs Jansen and Samson Attorneys the
sum of R90 000,00 for the review application (what that means).
3 See: Applican t's Applica tion for Condonation, Record pp . 1
4
[8] Applicant thereafter decided to terminate the mandate of Messrs Jansen and
Samson Attorneys, after the matter had been dragging on for over four years.
It is unclear whether Applicant received a proper account from Messrs Jansen
and Samson Attorneys for the aforesaid sum so paid to the latter or whether
she obtained any refund from Messrs Jansen and Samson Attorneys. 4
[9] Applicant hereafter instructed her present attorneys of record Messrs J Jacobs
and Associates during September 2023 to represent her i
application.5
[1 0] The Respondent's opposition to Applicant's claim is as not
complied with the rules as indicated in this Hano
APPLICABLE LEGAL PRINCIPLES
[1 1] The crisp issue for determination herein is whether the condonation
[12]
application served and file nt approximately two (2) years after
her last communication pondent or this Honourable Court is
ule 37 (15) and whether the Applicant
has complied with tne requir~mer:its as set forth in terms of Rule 37 (16) of the
plication was served and filed on the 17th April 2024,
t ractice Manual was still applicable.7
[1 3] I ane v Safety & Security Bargaining Council & Others8 it was
he the Practice Manual was no longer applicable after 1 July 2024 and
4 See: Recmd p. 6, Applicant 's Founding Affidavit , para 3.5 thereof
5 See: Record p. 6, Applicant 's Founding Affidavit , para 3.6 thereof
6 See: Record p. 48 First Respondent 's Answering Affidavit
7 See: Paragraph 11.2. 7 of the Labour Court Practice Manual
8 See: Total Mashiane v Safety & Security Bargaining Council [2024] ZALCJHB 432 (13th November
2024) at para [5]
5
that the new Labour Court rules were applicable when the matter was heard
on the 13th November 2024.
[14] Rule 37 of the so-called new Labour Court Rules expressly provides as
follows:
"The applicant must transcribe and make copies of the record and file
only those portions of the record as may be necessary for the purposes
of the review, and certify each copy as true and correct 7f the applicant
contends that the decision under review shoul se it
is unreasonable or irrational in relation to the e before
the decision-maker the complete record mu
[15] Rule 37 further provides:
"If the application fails to file d record within the prescribed
period the Applicant will e deemed to have withdrawn the application,
unless the Applicant nas during that period requested the Respondent 's
consent for extens10D of time and consent has been given. Any consent
given must b expressed m writing and filed with the Registrar. "10
sed, the applicant may on notice of motion supported
pply to the Judge President in chambers for an extension
he applicant must submit proof of service on all other parties,
answering and replying affidavits may be filed within the time limits
prescribed by rule 35. "11
9 See: Rule 37 (12) of the new Labom Court Rules
10 See: Rule 37 (1 5) of the new Labour Court Rules
11 See: Rule 3 7 (16) of the new Labour Court Rules
6
[17] In Total Mashiane v Safety & Security Bargaining Council & Others, the court
held as follows:
"It is noteworthy to mention, that unlike rule 37(12), rule 7A(6), did not
specifically direct an applicant to file the complete record when
attempting to have an award set aside on grounds that an arbitrator's
decision was unreasonable. However, in keeping with the uthorities
raised by Ms Bismilla, it has always been the case that an applicant is
obliged to file a complete record when attacking t unds
of reasonableness. The rational being that a r, • ~.__ have
sight of the totality of the evidence before a ciding
whether or not an applicant has met th arrants the
reviewing court's intervention. Rule pecifica/ly sets
out an applicant's obligation t •• cord in support of a
finding that an arbitrator arriv reasonable arbitrator
could have arrived at, merely xisting and binding principle
at the time. ,,,, 2
[18] Having considere n and Condonation Application filed on
the 17th April e Applicant has failed to file the complete
record wit d prescribed and has also not sought any
indul ondent in this regard or the Judge-President.
[19] I the Applicant's Notice of Motion is not in compliance with
[20]
::fie review application is deemed to have been withdrawn, and
he Applicant faces a further challenge though, in that she has failed to show
good cause for the application to be revived.
12 See: Rule 37 (12) of the Labour Court Rules
7
[21] In the Condonation Application, the Applicant seeks an order that this
Honourable Court:
(1) Condones the non-compliance with Rule 7 A (b) of the Labour Court
Rules; and
(b) The Applicant's late filing or delivery of its Notice of Statement of Case
be condoned as required in terms of Rule 7 A (b ).13
[22] Accepting that Applicant's review application was delive ed
[24]
Condonation Application filed on the 17th of April 20 -
the revival or reinstatement of her main applicati ,'fl_
"An application for revival or r:einstatement involves the exercise of a
discretion on the part of the court~ kin to an application for condonation.
In order to show go0 cawse, an applicant must put up a reasonable
explanation whi ntire period of the delay as well as
showing reasonable mspects of succeeding in the main application."14
Iew demonstrated good cause for revival, there
app ation for the reason of lateness. It is furthermore
• • rospects of success preferred by the Applicant.
tfi views express in the Mayekiso v Jamodien & Others case that an
tion for revival or reinstatement involves the exercise of a discretion on
the part of the court akin to an application for condonation, the principles
applicable to applications for condonation need to be considered in an
application for revival or reinstatement. In this regard in Melane v Santam
Insurance Co Limited the court enumerated the following factors as relevant
13 See: Applicant 's Application for Condonation , Record pp 1 - 3
14 Mayekiso v Jamodien & Others [2024] ZALCCT 31(10 July 2024) para 9
8
for consideration viz the degree of non-compliance with the rules, the
explanation therefor, the prospects of success on appeal, the importance of
the case, the respondent's interest in the finality of his/her judgment, the
convenience of the court, and the avoidance of unnecessary delay in the
administration of justice.15 The list is not exhaustive as has been pronounced
in various judgments subsequent.
[26] In Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus
[27]
Curiae) it was held:
''This Court has held that the standard for consio rin
condonation is the interests of justice.
lion for
interests of
justice to grant condonation depends o circumstances of
each case. Factors that are rel elude but are not
limited to the nature of the r, tent and cause of the
delay, the effect of the delay inistration of justice and other
litigants, the reasonableness o t e explanation for the delay, the
be raised in the intended appeal and the
In Van Wyk
Curia • an applicant for condonation must give a full
exp which must not only cover the entire period of the
The 1Xpplicant, in the present instance has not addressed any of the factors
enu erated above, nor does the Applicant demonstrate any good cause why
he ought to be granted the relief sought.
15 See: Melone v Santam Insurance Co Limited 1962 (4) SA 531 (A) at p. 532 C - F
16 See: Van W:,vk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) 2008 (2) SA
472 (CC) atp 477 A - B
17 Van ffi'."ykv Unit.as Hospital (Open Democratic Advice Centre as Amicus Curiae) (supra) at p 477 E
-F
9
[29] Mr Rodriques who appeared on behalf of the Respondent submitted that if the
application is deemed to have been withdrawn, the review application may not
be reinstated without an order of court granted on application by the Applicant,
on good cause shown. In my view a perusal of Rule 37 (18) of the new Labour
Court rules clearly provides that if an application for review is deemed to have
been withdrawn, the Applicant's application for review cannot be reinstated
without an order of court, granted to the Applicant on good cause shows. The
rule clearly envisages that an Applicant set forth the criteria a
above.
[30] Applicant took the cell phone home and later went h where
she collected the cell phone and handed it to Mr ·
[31] The Applicant clearly breached the
phone home and proffered no expl he took the cell phone
home. The Applicant's conduct as a oresaid as wholly in breach of the rule
0.f the view ttiat the Applicant does not enjoy
reasonable prospect n.
[32] ed to demonstrate good cause as to why
COSTS
[33]
this Honou ant her the relief sought.
he awarding of costs involves the exercise of discretion to
xercised judicially upon a consideration of the facts of each case and in
ess lilCe the decision is a matter of fairness to both sides.18
18 See: E1f One Six Seven Orchards CC v Greater Johannesburg Metropolitan Council (Johannesbwg
Administration ) 1999 (1) SA 104 (SCA) at p 109 A - B
[34] In Mu/ti-Links Telecommunications Ltd v Africa Prepaid Services Nigeria Ltd
it was held as follows (in relation to costs de bonis propriis again legal
representatives.
"It is true that legal representatives sometimes make errors of law, omit
to comply fully with the Rules of Court or err in other ways related to the
conduct of the proceedings. This is an everyday occurrence. This does
not however per se ordinarily result in the court showing its displeasure
by ordering the particular legal practitioner to pay the costs from his own
pocket. Such an order is reserved for conduct which substantially and
materially deviates from the standard expected of the legal practitioners ,
such that their clients, the actual parties to the litigation, cannot be
expected to bear the costs, or because the court feels compelled to mark
its profound displeasure at the conduct of an attorney in any particular
context. Examples are, dishonesty, obstruction of the interests of justice ,
irresponsible and grossly negligent conduct, litigating in a reckless
manner, misleading the court, and gross incompetent and a lack of care.
See for instance Herbstein & Van Winsen: The Civil Practice of the High
Courts of South Africa (5th Edition by Cilliers and Others) Vol 2 at p984.
See also: Ward v Sulzer 1973 (3) SA 701 (AD) at 706 - 707."
~
[35] The • d the present application and has not demonstrated
go r the relief sought. The Applicant, in my view has not
nd satisfactory explanation for the delay in launching the
n. The Applicant launched the present application on the 26th
January 2020 and served on the offices of the State Attorney on the 30th
Jan ary 2020. The Applicant failed to comply with Rule 7A (5) in that all
relevant portions of the record was not filed and the relevant portions of the
record of proceedings had not been delivered despite the matter being
launched in January 2020. Applicant and her erstwhile attorneys of record did
launched in January 2020. Applicant and her erstwhile attorneys of record did
not file and application with supporting affidavit to the Judge President
requesting an extension of time to have the full record of proceedings served
and filed.
11
The Respondent has asserted that the above conduct of the Applicant and her
erstwhile legal representatives has caused it prejudice in that it was unable to
file an answering affidavit in response to the Applicant's Founding Affidavit. 19
[36] Alarmingly when faced with the above assertion by the First Respondent , the
Applicant's erstwhile attorneys of record, Messrs Jansen and Samson
withdrew as the Applicant's attorneys of record. This, despite, it a pears the
Applicant having paid her erstwhile attorneys of record
RS0 000,00 to represent her in the review proceedings.
[37] Given the lack of particularity especially with regard factory
explanation for the delay in launching the review of the view
that it would be just and appropriate to awa[d A
[38] In the circumstances the following o
Order:
1 . The application to set aside the decision of the Third
BA~~ERAJ
Acting Judge of the Labour Court
19 See: First Respondent's Answering Affidavit in respect of Applicant 's Application for Condonation,
para 28 thereof