IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: 712/23
In the matter between:
AMOS MALULEKE First Applicant
ERICK TEBOGO TELJOJANE Second Applicant
and
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER SANDRA MATHIBELA N.O. Second Respondent
HARMONY GOLD MINING COMPANY LIMITED Third Respondent
Heard: 6 May 2025
Delivered: 20 May 2026
JUDGMENT
ENGELBRECHT, AJ
(1) Reportable No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Introduction and background
[1] This is an application for review under section 145 of the Labour Relations
Act1 (LRA). The applicants seek review of a ruling of the second respondent
(Commissioner Mathebula) dated 6 March 2023, refusing condonation for the
late filing of an unfair dismissal complaint to the first respondent , the
Commission for Conciliation, Mediation and Arbitration (CCMA).
[2] The condonation application came before Commissioner Mathebula in the
following circumstances:
2.1. Pursuant to disciplinary proceedings in which the applicants were
charged with dishonesty, they were dismissed on 10 September 2022.
2.2. Internal appeal and review processes followed. They all failed, and the
final findings upholding the dismissal were provided to the applicants
on 4 October 2022.
2.3. On 26 October 2026, the applicants gave instruction to their attorney to
refer an unfair dismissal dispute.
2.4. He did so on 2 November 2022. However, the referral was not
accompanied by the requisite proof in accordance with rule 6 of the
Rules for the Conduct of Proceedings before the Commission for
Conciliation, Mediation and Arbitration (CCMA r ules) that it had been
served on the respondent party (Harmony).
2.5. On 5 November 2022, the CCMA acknowledged receipt of the referral,
but advised that condonation was to be sought.
2.6. Application for condonation followed. The founding affidavit was
deposed to on 9 December 2022, but in opposing the application
Harmony said that it was only emailed to it on 24 December 2022, 50
days after the date for referral within the prescribed time periods had
passed. That accords with an annexure to the replying affidavit of the
applicants in the condonation application. Moreover, Harmony pointed
1 Act 66 of 1995.
3
out that the founding affidavit merely asserted prospects of success
without providing an explanation. Notably, despite bringing an
application for condonation, t he applicants asserted that the referral
was not late.
[3] The applicants received condonation rulings on 17 February 2023. The first
was a handwritten ruling of Commissioner X Santi. It stated that no proof of
service had been filed and that the matter was to remain closed until the
applicants complied with CCMA rule 6. The second was the condonation
ruling that is the subject of the review application.
The ruling
[4] In Commissioner Mathebula’s ruling, it was pointed out that a referral is not
properly before the CCMA if certain requirements are not met, including the
provision of the parties' contact details. This requirement was not complied
with before 9 December 2022, some 36 days outside the 30- day prescribed
period within which referral must be made. Moreover, Commissioner
Mathebula pointed out that no explanation was provided for the delay and that
no analysis had been offered regarding the prospects of success.
[5] Pointing out that the applicants could not assert that they were unaware that
the referral had been defect ive (as the CCMA had alerted them), and
highlighting that there is no explanation for the delay between 5 November
2022 (when they were advised to make the correction) and 9 December 2022
(when they brought the application) , Commissioner Mathebula dismissed the
condonation application. The ruling was supported by reference to
jurisprudence on the requirements for the grant of condonation.
The review
[6] The review was launched on 8 May 2023. The applicants contend that
Commissioner Mathebula committed misconduct in relation to her duties as
an arbitrator, and that she committed a gross irregularity in the conduct of the
arbitration proceedings. In essence, the applicants appear to be saying that
the CCMA has email addresses for Harmony representatives, and so their
4
failure to provide contact details for Harmony should not have been treated as
giving rise to a defective referral. They say the CCMA “ concealed”
information, and that Commissioner Mathebula ought to have considered the
merits of the matter. They complained of the failure to call for a hearing (i.e.
the decision to determine the condonation application on the papers).
[7] On 16 May 2023, the CCMA and Commissioner Mathebula gave notice of
intention to oppose. However, no answering affidavit was filed, and on 28
July 2023, notice of withdrawal of opposition was filed. Harmony did not give
notice of intention to oppose.
[8] On 26 May 2023, the CCMA gave notice in terms of rule 7A(3) of the Rules for
the Conduct of Proceedings in the Labour Court
2 (the rules) that the record
had been dispatched to the Registrar.
[9] On 31 May 2023, the Labour Court gave notice to the applicants that the
record had been received and that it was to be collected within seven days.
[10] On 4 July 2023, a notice in terms of rule 7A(8)(b) was served on the CCMA.
The applicants stated that they “abide by their Notice of Motion”. The Labour
Court stamp affixed to the document indicates that it was filed with the Labour
Court on 14 February 2024, as was the service affidavit.
[11] On 28 August 2024, the applicants gave notice in terms of rule 22B that they
had indexed and paginated the Court file and requested a set -down on the
unopposed roll.
[12] On 7 November 2024, the Labour Court issued a notice of set -down for the
unopposed roll of 26 November 2024.
[13] The matter came before Makoele AJ on 26 November 2024, but the matter
was removed from the roll at that time.
[14] A service affidavit deposed to on 27 February 2025, and filed with this Court
on the same day, asserted that a notice of compliance was served on
2 Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the Labour
Court. Published 3 May 2024 (GN 50608). Effective 17 July 2024.
5
Harmony on 14 February 2025. That accords with the contents of an email
attached to the affidavit.
[15] A notice dated 4 March 2025 stated that the Court file had been paginated
and indexed, and that applicants had complied with rule 7A(8)(b) . Re -
enrolment on the opposed roll was sought.
[16] On 11 March 2025, notice of set -down on the unopposed roll for 6 May 2025
was sent to all the parties.
Harmony’s position
[17] On 27 March 2025, Harmony’s attorneys wrote to the applicants’ attorneys.
17.1. They made reference to the provisions of the Practice Manual of the
Labour Court (Practice Manual) in force at the time of the launch of the
review, which provided in paragraph 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 i s shown why the application
should not to be archived or be removed from the archive.”
17.2. Based on this, they asserted that the applicants had been required to
take all steps, including informing the Registrar that the matter was
ready for allocation, by no later than 8 May 2024, in circumstances
where the review had been launched on 8 May 2023.
17.3. Since the applicants only notified the Registrar that the matter was
ready for allocation on 28 August 2024, the matter was archived for
non-compliance. The effect, they asserted, was as envisaged in
paragraph 16.3 of the Practice Manual:
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“Where a file has been placed in archives, it shall have the same
consequences as to further conduct by any respondent party as to the matter
having been dismissed.”
17.4. Raising further complaints of non- compliance relating to the service of
the review, the record and the notice in terms of the then rule 7A(8)(b)
and attempts to add evidence shortly before the hearing, the attorneys
asked for confirmation that the matter would be removed from the
unopposed roll, referring to the judgment in Macsteel Trading
Wadeville v Van der Merwe NO and others,
3 holding that this Court did
not enjoy jurisdiction to hear a “lapsed application” in the absence of a
substantive review application.
[18] The matter came before this Court on 6 May 2025.
Can this Court entertain Harmony’s objection?
[19] Although Harmony had not opposed the review, its representative, Mr Kruger,
appeared before me. His aim was to bring the “ jurisdictional” issue to the
attention of the Court.
[20] The Labour Court is a creature of statute that may only exercise jurisdiction
conferred upon it by law.
4 Even if a review is unopposed, the Court must first
satisfy itself that it has jurisdiction. Indeed, Courts are required to raise and
determine the issue of jurisdiction on their own initiative, even if the parties do
not raise it.
5 Jurisdiction is determined by the law and the facts pleaded, not
by the parties’ conduct or consent. 6 This Court cannot assume jurisdiction
simply because an application is unopposed; it must actively determine
whether it has the power to hear the matter. The Constitutional Court has
held that, where the Labour Court grants default judgment without the
statutory preconditions for jurisdiction having been met, the judgment is
erroneously granted and susceptible to rescission.
7
3 (2019) 40 ILJ 798 (LAC) at para 27.
4 See: Gcaba v Minister for Safety and Security and others 2010 (1) SA 238 (CC).
4 See: Gcaba v Minister for Safety and Security and others 2010 (1) SA 238 (CC).
5 See: Standard Bank of South Africa Ltd and others v Mpongo and others 2021 (6) SA 403 (SCA).
6 See: Chirwa v Transnet Ltd 2008 (4) SA 367 (CC).
7 See: September and others v CMI Business Enterprise CC (2018) 39 ILJ 987 (CC).
7
[21] However, although the Labour Appeal Court (LAC) expressed non-
compliance with the Practice Manual using the language of “ jurisdiction”,
compliance with the Practice Manual , in my view, was not a true jurisdictional
fact in the strict sense that the Labour Court had no adjudicative power at all
where there was such non-compliance.
21.1. The Practice Manual described the consequences of various forms of
non-compliance as lapsed , archiv ed, deemed withdrawal or
abandonment, and prescribed the need for reinstatement. What was
provided was a strong procedural bar, but that is not necessarily the
same as a lack of subject-matter or adjudicative jurisdiction.
21.2. The LAC, as Courts sometimes do, used the language of jurisdiction
broadly to describe a bar to entertaining proceedings, even though the
question might more readily have been described as a one of
procedural competence or the status of the application.
[22] That said, the guidance of the LAC in Macsteel is clear: if there was non -
compliance with the Practice Manual leading to archiving and the matter
deemed lapsed, it is not open to this Court to deal with the merits of the
application. The matter must be struck from the roll.
[23] For these reasons, even though Harmony has not formally opposed the
application, this Court must address the question raised by Mr Kruger on
Harmony’s behalf – not because Harmony raised it, but because the failure to
do so would render this judgment susceptible to upset on appeal, as was the
case in Macsteel.
Analysis: Non-compliance with the Practice Manual
[24] There is no doubt that the applicants did not inform the registrar that the
review was ready to be enrolled within 12 months of its launch: the review
was brought on 8 May 2023, but the request for enrolment followed only on 28
August 2024, i.e. one and a half years outside the 12- month period employed
in paragraph 11.2.7 of the Practice Manual.
8
[25] In consequence, the file:
25.1. entered the strange world of limbo “ without ever being formally
dismissed and from which the file may never emerge unless a properly
motivated revival application . . . enters to rescue it from a shadowy
netherworld” as described by Bank AJ in Edcon (Pty) Ltd v Commission
for Conciliation, Mediation and Arbitration and others: In re Thulare and
others v Edcon (Pty) Ltd;
8 or even
25.2. fell to be treated as “dead as a doornail”, as contemplated in Overberg
District Municipality v Independent Municipal and Allied Trade Union on
behalf of Spangenberg and others.9
[26] I am mindful of the judgment of my sister Justice Nkutha-Nkotwana in Ndlela v
Department of Correctional Services: In Re: Department of Correctional
Services v Ndlela and Others
10 where it was stated:
“In my view fairness, which is a ‘[a] key purpose of the LRA, if not one of the
foundational values it espouses’, dictates that the review application be dealt
with and disposed of on the merits rather than technicalities”.
[27] However, I am bound by Macsteel, and therefore constrained to order that the
matter be struck from the roll.
[28] I must also highlight other difficulties of non- compliance beyond the obvious
non-compliance with the Practice Manual.
28.1. The rules that were in place at the time the review was launched,
required of an applicant to “ furnish the registrar and each of the other
parties with a copy of the record” in the review (rule 7A(6)), followed
within ten days by a notice as contemplated in rule 7A(8)(b) that it
stand by its notice of motion, or an amendment of the notice of motion
and supplementary affidavit (rule 7A(8)(a)). Only once the applicant
had done so was the obligation of a party intending to oppose
8 (2016) 37 ILJ 434 (LC).
9 (2021) 42 ILJ 1283 (LC) .
10 [2022] ZALCJHB 133 (9 June 2022) at para 26.
9
triggered: it had to file an answering affidavit within ten days of the
receipt of a notice under either subrule 7A(8)(a) or (b).
28.2. The notice of motion in the review, correctly, indicated that this was the
process. It thus made clear that a respondent did not have to respond
to the application before it had received both the record and the
documents contemplated under rule 7A(8)(a) or (b).
28.3. In the present case, the service affidavits in respect of the rule 7A(8)(b)
compliance notice asserted that:
28.3.1. “On the 04 th of July 2023, I served a copy of the first and
second Applicants’ notice of compliance at the offices of the
first and second respondents”.
28.3.2. “On the 14 th February 2025, I served a copy of the first and
second Applicants’ notice of compliance on the third
respondent on the following emails …” .
28.4. In other words, on the applicants’ own version, the rule 7A(8)(b) notice
was served on Harmony only by 14 February 2025, when it ought to
have been done within ten days of the registrar making the record
available, which occurred already on 31 May 2023 – almost two years
before. On that basis, Harmony had not been required to file an
answering affidavit before the end of February 2025. And indeed, in
the absence of condonation for the applicants’ failure to have complied
with the rules, they could legitimately say that they were not required to
file an answer even then.
28.5. What all of this means is that, when the first application for enrolment
was made in August 2024, it could not have been asserted that the
matter was ready to be enrolled. Plainly, it was not, because the
applicants had not yet served the rule 7A(8)(b) notice on Harmony ;
Harmony accordingly had no obligation to file an answer yet, and, in
any event, the applicants had not sought condonation for their failure to
10
serve the rule 7A(8)(b) notice within the time period contemplated by
the rules.
28.6. By the time the second enrolment notice was filed, the applicants had
still not filed an application for condonation for the late service of the
rule 7A(8)(b) notice.
[29] Not only did the applicants not comply with the Practice Manual; they also
failed to comply with the rules. The effect was a significant delay in the
prosecution of the review.
[30] In ligh t of all matters considered, any re- enrolment would, in my view, face
considerable obstacles. Not only would the applicants have to bring an
application to revive the review, they would also have to seek condonation for
non-compliance with the rules. Only if both those applications were
successful would Harmony be called upon to file an answer. But that’s just as
an aside.
[31] I will not make a costs order in this application. There is no point in saddling
the applicants with a costs order in favour of Harmony. In any event,
Harmony’s opposition was not formalised.
[32] Finally, I apologise for the delay in rendering this judgment, which is due to an
administrative error on my part. It is unacceptable that the parties have had to
wait this long for the outcome of a fairly simple debate.
[33] In the premise the following order is made:
Order
1. The application is struck from the roll.
2. There is no order as to costs.
_____________________
M. Engelbrecht
Acting Judge of the Labour Court of South Africa
11
Appearances:
For the Applicant : T Matswiki
Instructed by : Ndaba Attorneys
For the third Respondent : A. Kruger of Webber Wentzel