THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA14B/25
In the matter between:
D.S. MPANZA First Appellant
P. MATSHELO Second Appellant
P. SUKHRA-J-ELLY Third Appellant
J. MATSHIDISO Fourth Appellant
T. BODIBA Fifth Appellant
D. PHAHLANE Sixth Appellant
S. DLWATHI Seventh Appellant
S. MDZEKE Eighth Appellant
D. SEOPA Nineth Appellant
M.D. MATODI Tenth Appellant
L.C. MQUSHULU Eleventh Appellant
L. TSHIDZUMBA Twelfth Appellant
(1) Reportable Yes
(2) Of interest to other Judges: No
(3) Revised
______________
Signature Date
2
S. MTHIMUNYE Thirteenth Appellant
and
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT First Respondent
MSHORO JAMES MATLALA N.O. Second Respondent
GENERAL PUBLIC SERVICES SECTORAL
BARGAINING COUNCIL (GPSSBC) Third Respondent
THE MINISTER OF PUBLIC SERVICE AND
ADMINISTRATION OF SOUTH AFRICA Fourth Respondent
PUBLIC SERVICE ASSOCIATION OF SOUTH AFRICA Sixth Respondent
THE NATIONAL EDUCATION AND HEALTH
ALLIED WORKERS UNION Seventh Respondent
Heard: 27 November 2025
Delivered: 12 May 2026
Coram: Mahalelo ADJP, et Kganyago, Djaje AJA
JUDGMENT
KGANYAGO, AJA
Introduction
[1] The dispute had a protracted history of being in and out of the bargaining council
(Third Respondent) and the Labour Court. The dispute dates to 13 years ago,
when the appellants referred a dispute which concerns the interpretation and
application of the collective agreement to the third respondent for conciliation and
3
arbitration if necessary. The appellants were seeking the relief that they be
translated into the Occupational Specific Dispensation (OSD). The matter was
unresolved at the conciliation lev el and was referred for arbitration. On
10 September 2013, the commissioner (Second Respondent) issued an award
which was in favour of the appellant s. The first respondent instituted a review
proceeding seeking to review the award, which came before the Labour Court
(court a quo) for adjudication on 30 June 2023. Judgment was delivered on
25 June 2024, wherein the award of the second respondent was reviewed and
set aside. With the leave of the court a quo, the appellants are appealing against
the whole of the judgment and order.
Background
[2] At the beginning of 2008, the first respondent created the Civil Litigation Unit , the
purpose of which was to recruit and retain advocates to conduct civil litigation on
behalf of the State. Positions were advertised on 25 January 2008, and the
appellants were appointed to those posts as Senior State Advocates and State
Advocates. The first group of the appellants were appointed during October
2008, and others later . The key functions of the appellants w ere to render
specialist legal representation to the State in the Constitutional Court , Supreme
Court of Appeal, High Courts, Special Courts and/or tribunals , as well as other
complex litigation proceedings.
[3] Prior to the appellants ’ appointment, on 7 th February 2008, he first respondent,
sixth and seventh respondents concluded R esolution 1 of 2008, which was an
agreement on the implementation of OSD for the legally qualified categories of
employees. The effective date of the agreement was backdated to 1
July 2007.
Clauses 1 and 3 of the agreement provide as follows:
“1. INTRODUCTION
This agreement gives effect to PSCBC Resolution 1 of 2007 in providing for the
development and implementation of an Occupational Specific Dispensation (OSD) for
development and implementation of an Occupational Specific Dispensation (OSD) for
qualified legal professionals with effect from 1 July 2007.
4
3. SCOPE
3.1 This agreement binds-
3.1.1 the Employer,
3.1.2 the Employees of the Employer who are members of the trade union parties to
this agreement; and the employees of the Employer who are not members of any
trade union party to this agreement, but fall within the registered scope of the
Council; and
3.1.3 who fall within the following occupational categories:
-State Attorney
-Family Advocate
-State Law Advisor
-Legal Administrator Officer
-Master
-Register
-Maintenance Officer
-Estate Officer”.
[4] However, the appellants were not included in the category for those who qualify
for OSD. On 2 2 August 2012, the appellants lodged a grievance with the first
respondent seeking to be included in the OSD. The grievance could not be
resolved on the basis that the first respondent had informed the appellant s that it
was bound by the collective agreement and that including them would amount to
unilaterally amending the collective agreement. The appellants referred their
dispute to the third respondent for concil iation, and if unresolved at conciliation,
to arbitration. In their referral to the third respondent, the appellants were seeking
to be translated to OSD, and that their salaries be adjusted in accordance with
5
experience gained before 2007 and thereafter. The dispute could not be resolved
at conciliation, and the appellants referred their dispute for arbitration.
The Arbitration Award
[5] The second respondent found that the crisp issue which he was called upon to
determine was whether the appellants were entitled to be translated to OSD in
terms of Resolution 1 of 2008. Further , he had to first establish whether the
appellants and the respondents are bound by the collective agreement (GPSSBC
Resolution 1 of 2008). The second respondent found that the appellants were not
members of the trade union, but were employees of the first respondent , and
also fell within the registered scope of the Counc il, and therefore, the appellants
and the respondents were bound by R esolution 1 of 2008. In his award, the
second respondent concluded that the appellants were entitled to be translated
into OSD and have their salaries adjusted in accordance with experience gained
before 2007 and thereafter retrospectively. The first respondent was ordered to
translate and adjust the appellants’ salaries in accordance with the award. The
second respondent’s award was issued on 10
September 2013. Aggrieved by the
outcome of the arbitration award, the first respondent brought a review
application seeking to review and set aside the second respondent’s award.
Before the matter could finally be heard in the Labour Court, this matter was
going back and forth in both the Labour Court and the third respondent
Labour Court
[6] On 15 October 2015, the review application in this matter came before Basson J.
By consent between the parties , Basson J ordered that the matter be postponed
sine die, and directed that the appellants approach the fourth respondent with a
view to request the third respondent to convene a meeting of all interested
parties to the collective agreement , including the appellants. The purpose of that
meeting was to discuss the inclusion of the appellants in Resolution 1 of 2008.
6
[7] On 2 nd August 2016, the review application came before Van Niekerk J. There
was a no- show by both parties, and Van Niekerk J dismissed the review
application. That led to the appellants bringing an application in terms of section
158(1)(c) of the Labour Relations Act 1 (LRA), seeking to make the award an
order of the C ourt. On 2 June 2017, the review and section 158 applications
came before Lagrange J. Lagrange J ordered the first respondent to file a
rescission application and also a condonation application for the late filing of the
rescission application. The first respondent filed only the rescission application,
but failed to file a condonation for the late filing of the rescission application.
[8] On 25
April 2018, the review, section 158 and rescission applications came
before Nkhutha- Nkontwana J , who remitted the matter back to the third
respondent. Nkhutha-Nkontwna J directed that the parties were to convene at the
third respondent’s chambers to discuss the possible inclusion of the appellants in
the Resolution 1 of 2008. Further , the parties were to report to the Labour Court
the outcome of their discussion. On 10
July 2018, the secretary of the third
respondent reported to the Labour C ourt that the outcome of the meeting was
that the matter would be tabled before the GPSSBC for consideration.
[9] On 19 August 2018, the appellants instituted contempt of court proceedings in
the Labour Court against the secretary of the third respondent. On
30
November 2018, the parties entered into a settlement agreement , which was
made an order of court. The terms of the settlement agreement were that (i) the
appellants withdrew their contempt of court application against the secretary of
the third respondent; and (ii) the third respondent would use its best endeavours
to convene a meeting before the end of February 2019 between all the parties ,
including the trade unions and the fourth respondent. The meeting would be
including the trade unions and the fourth respondent. The meeting would be
convened outside the provisions of the third respondent’s constitution, and its
objective would be to resolve the dispute between the Department and the
appellants by identifying a process that would allow the dispute between the
Department and the appellants to get on the agenda of the third respondent.
1 Act 66 of 1995
7
[10] The secretary of the third respondent reported to the Labour Court that a meeting
was held between the parties , and the parties could not reach an agreement on
the issues in contention, but that it was agreed that the appellants may approach
the Public Service Coordinating Bargaining Council (PSCBC). The appellants
referred their dispute to PSCBC, and on 26 July 2022, the commissioner of
PSCBC found that although the appellants were bound by Resolution 3 of 2010,
it cannot be held that they were parties to the agreement. Furthermore, the
appellants in their personal capacities do not have a right to refer their dispute to
the PSCBC, and they lack the necessary locus standi to refer their dispute about
the interpretation of the Resolution. The commi ssioner ruled that the bargaining
council lacks jurisdiction to determine the appellants’ dispute. The appellants did
not bring an application to review and set aside this ruling.
[11] On 30 June 2023, the three applications (review, section 158 and rescission)
came before the court a quo. The court a quo found that although the first
respondent had failed to file a condonation application as previously ordered, it
was necessary for it to entertain condonation without any formal application. The
court a quo held that it was unacceptable that , having been ordered by the court
to file a condonation application, the first respondent had not bothered to do so.
There is simply no excuse whatsoever for not complying with the court order.
This was strictly contemptuous conduct. The court normally would lack
jurisdiction to deal with the matter in the absence of a condonation application.
However, despite these damning findings, the court a quo concluded that when it
looked at the facts of the case, the importance of the issue at hand, the parties
involved and the fact that the dispute, primarily the review application has been
so protracted, the interest of justice dictate that the first respondent’s non-
so protracted, the interest of justice dictate that the first respondent’s non-
compliance be condoned in the first place and secondly condone the late filing of
the rescission application. The court a quo granted the first respondent
condonation for the late filing of their rescission application, proceeded to grant
the rescission application, and thereafter reviewed and set aside the award of the
second respondent. The appellants , with the leave of the court a quo, are
appealing against the whole of the judgment and orders of the court a quo.
8
Grounds of Appeal
[12] The appellants’ grounds of appeal are that the court a quo erred in finding that
the fact that the appellants were not a party to the collective agreement and
therefore Resolution 1 of 2008 did not have locus standi to refer a section 24
dispute to the arbitrator and the GPSSBC, and that the award was therefore a
nullity which stood to be reviewed and set aside. The court a quo erred in not
taking into consideration the existing determination by the fourth respondent,
wherein the fourth respondent had determined that the OSD was applicable to all
legally qualified employees who were employed in terms of the Public Service
Act, 1994, retrospectively to 1 April 2007. The court a quo erred in finding that the
arbitrator had incorrectly interpreted and applied the Resolution to include the
appellants. The court a quo erred in granting the order condoning the late filing of
the first respondent’s rescission application in the absence of an application,
despite Lagrange J having ordered them to file such an application. The court a
quo erred in granting an order reviewing and setting aside the award, and failing
to consider the appellants’ section 158(1)(c) application.
Evaluation
[13] The court a quo has correctly held that, normally, it would have lacked jurisdiction
to deal with the matter in the absence of the condonation application. The first
issue this Court must determine is whether it was competent for the court a quo
to have entertained a condonation application which the first respondent never
applied for. The test for granting a condonation application is not based on
sympathy or feeling sorry for the applicant. The factors which a court must
consider when exercising its discretion whether to grant condonation includes the
degree of lateness, explanation for the delay, prospects of success, degree of
non-compliance with the rules, the importance of the case, the respondent’s
9
interest in the finality of the judgment of the court below, prejudice to any of the
parties and avoidance of unnecessary delay in the administration of justice. 2
[14] In Grootboom v National Prosecuting Authority and Another3 Bosielo AJ said:
“[22] I have read the judgment by my colleague Zondo J. I agree with him that,
based on Brummer and Van Wyk, the standard for considering an application for
condonation is the interest of justice. However, the concept “interest of justice” is
so elastic that it is not capable of precise definition. As the two cases
demonstrate, it includes: the nature of the relief sought; the extent and cause of
the delay; the effect of the delay on the administration of justice and other
litigants; the reasonableness of the explanation for the delay; the importance of
the issue to be raised in the intended appeal; and the prospects of success. It is
crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate
determination of what is in the interest of justice must reflect due regard to all the
relevant factors but is not necessarily limited to those mentioned above. The
particular circumstances of each case will determine which of these factors are
relevant.
[23] It is now trite that condonation cannot be had for the mere asking. A party
seeking condonation must [my emphasis] make out a case entitling it to court’s
indulgence. It must show sufficient cause. This requires a party to give full
explanation for the non-compliance with the rules or court’s directions.” [my
emphasis]
[15] The Brummer, Van Wyk and Grootboom cases have extended the test for the
granting of a condonation application, which now includes the interest of justice.
A party applying for condonation is seeking indulgence from the court for its
failure to comply with the court’s rules or directives. That party must set out a
case entitling it to the court’s indulgence in an application supported by an
case entitling it to the court’s indulgence in an application supported by an
affidavit. The court hearing the application will be able to deduce from the facts
2 See Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and
Others [2013] 2 All SA 251 (SCA) at para 11.
3 [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] BLLR 1 (CC); (2014) 35 ILJ 121
(CC) (21 October 2013) at para 22 and 23
10
placed before it by the party seeking indulgence whether it is in the interest of
justice to grant condonation. Sufficient cause is not mad e out of the vacuum ;
there must be facts placed before the court to enable it to properly exercise its
discretion. It will not be assumed that, where non- compliance was due to the
neglect of the appellant’s attorney , condonation will be granted
4. The applicant
should set forth briefly and succinctly such essential information as may enable
the Court to assess the applicant’s prospects of success. If the explanation for
such non- compliance is manifestly inadequate or absent, the prospects of
success need not be considered.
[16] There was a valid court order by Lagrange J , which had directed the first
respondent to file a rescission application and a condonation application for the
late filing of the rescission application. At the time when the matter came before
the court a quo, that order was still valid and enforceable. Basson J, Nkutha-
Nkontwana J and Van Niekerk J’s orders did not amount to an abandonment or
waiver of the original proceedings as argued by counsel for the first respondent.
If there was an abandonment or waiver, the first respondent would not have
proceeded with its rescission application, as that application was emanating from
Lagrange J’s order. This shows that Lagrange’s order was still extant and was
not affected by the other orders. However, the first respondent chose to partially
comply with the order by filing only the rescission application. No explanation
was given to either the court or the appellants why it had failed to file a
condonation application.
[17] A court order, whether good or bad remains valid and enforceable until it has
been set aside by a court of competent authority. In Pheko and Others v
Ekurhuleni Metropolitan Municipality (No2)
5 Nkabinde J said:
“The starting point is the Constitution. It declares its own supremacy and this supremacy
“The starting point is the Constitution. It declares its own supremacy and this supremacy
pervades all laws. Section 165 vouchsafes judicial authority. It provides that courts are
vested with judicial authority and that no person or organ of state may interfere with the
4 Beweging vir Christelik -Volksise Onderwys and Others v Minister of Education and Others [2012]
ZASCA 45; [2012] 2 All SA 462 (SCA).
5 [2015] ZACC 10; 2015 (5) SA 600 (CC); 2015 (6) BCLR 711 (CC) (7 May 2015) at para 26.
11
functioning of the courts. The constitution explicitly enjoins organs of state to assist and
protect courts to ensure their independence, impartiality, dignity, accessibility and
effectiveness. In order to ensure that courts’ authority is effective, section 165(5) makes
an order of court binding on “all persons to whom and organs of state to which it applies”.
These obligations must be ful filled. It is significant that this subsection specifically
mentions organs of state, for “justiciability and powers of constitutional review make
sense only if non- judicial authorities cannot and do not undo court orders and/or their
consequences”. These sections, read alongside the interpretive injuction of the
supremacy clause, demonstrate why continual non- compliance with court orders and
decisions would, inevitably, lead to a situation of constitutional crisis”.
[18] The first respondent was aware of Lagrange J’s order, and at no stage did it take
any initiative to challenge it. Since the first respondent has not challenged that
order and was also aware of it, it was bound to comply with it. It could not have
simply ignored or hand-picked which part of the order to comply with without any
plausible explanation. If it had problems in complying with the order, it had to
seek indulgence from the C ourt by giving a full explanation of what made it
impossible for the first respondent not to comply with the order. The court a quo
has found that the first respondent , despite being ordered to file a condonation
application, did not bother itself to do so, and there was no excuse whatsoever
for not complying with the court order. Furthermore, the conduct of the first
respondent was contemptuous. The court a quo, by finding that the conduct of
the first respondent was contemptuous, implies that its actions were deliberate,
wilful and mala fide. The first respondent had therefore flagrantly disregarded a
valid court order without any justifiable reasons. It is mind-boggling that despite
valid court order without any justifiable reasons. It is mind-boggling that despite
such an adverse finding against the first respondent, the court a quo still deemed
it fit to come to the rescue of the first respondent.
[19] The appellants when they argued the appeal in this court have submitted that the
court a quo did not give them an opportunity to address it on the process it was
about to follow of entertaining the condonation application despite the first
12
respondent having failed to file it. In Road Accident Fund v Taylor and other
matters6 Van der Merwe JA said:
“In circumstances, the age-old principle of audi alteram partem required that the
affected persons be afforded reasonable prior notice and opportunity to state the
cases. In Beer NO v North- Central Local Council and South -Central Local
Council and Others (Umhlatuzana Civic Association intervening) 2002 (1) SA 429
(CC) para 11, the following was said with particular reference to s 34 of the
Constitution:
‘This s 34 fair hearing right affirms the rule of law which is the founding value of
our Constitution. The right to a fair hearing before a court lies at the heart of the
rule of law. A fair hearing before a court as a prerequisite to an order being made
against anyone is fundamental to a just and credible legal order. Courts in our
country are obliged to ensure that the proceedings before them are always fair.
Since procedures that would render the hearing unfair are inconsistent with the
Constitution courts must interpret legislation and rules of court, where reasonably
possible to do so, in a way that would render the proceedings fair. It is a crucial
aspect of our law that court orders should not be made without affording the
other side a reasonable opportunity to state their case…’”
[20] The appellants were appearing in person in the court a quo and also in this court.
This court is mindful of the fact that the appellants are legally qualified and their
job description entails handling legal matters , but they will be treated as
unrepresented parties. As unrepresented parties, it was the duty of the court a
quo to explain to them the procedure it was about to follow, and to afford them
sufficient opportunity to prepare their case on the procedure which the court was
about to follow and not just ambush them. The manner in which the court a quo
dealt with the condonation application was not fair to the appellants, as they were
dealt with the condonation application was not fair to the appellants, as they were
not forewarned and were not afforded ample opportunity to prepare for the
procedure which the court a quo followed.
[21] The court a quo granted an order which the first respondent had never applied
for or asked for. In Fischer v Ramahlele7 Theron and Wallis JJA said:
6 [2023] ZASCA 64 (8 May 2023) at para 33
13
“It is not for the court to raise new issues not traversed in pleadings or
affidavits, however interesting or important they may seem to it, and to
insist that the parties deal with them. The parties may have their own
reasons for not raising those issues. A court may sometimes suggest a
line of argument or an approach to the case that has not previously
occurred to the parties. However, it is then for the parties to determine
whether they wish to adopt the new point. They may choose not to do so
because of its implications for the further conduct of the proceedings,
such as an adjournment or the need to amend the pleadings or call
additional evidence. They may feel that their case is sufficiently strong as
it stands to require no supplementation. They may simply wish the issues
already identified to be determined because they are relevant to future
matters and the relationship between the parties. That is for them to
decide and not the court [my emphasis]. If they wish to stand by the
issues they have formulated, the court may not raise new ones or compel
them to deal with the matters other than those they have formulated in the
pleadings or affidavits”.
[22] The court a quo, having found that the first respondent had failed to file its
condonation application, and that normally it would have lacked jurisdiction to
deal with the matter in the absence of the condonation application, should have
brought that to the attention of the parties, and hear d from them how they intend
to deal with the matter, and not for it to decide for them. It is correct that this
matter had long been pending, and there had to be finality. However, that was not
a good ground to decide for the parties i n the name of the interest of justice. The
court a quo had already found that the first respondent had been wilful, deliberate
and mala fide in not complying with the court order. Since there was flagrant
disregard of the court order, the interest of justice favoured the dismissal of the
disregard of the court order, the interest of justice favoured the dismissal of the
first respondent ’s application for rescission. This was a matter that was not
worthy of the first respondent’s application being struck off the roll , as they were
already given ample opportunity by way of a court order to file a condonation
application, and they failed to do so, and deliber ately failed to advance any
7 [2014] ZASCA 88 (4 June 2014) at para 14
14
reasons why they chose to file only the rescission application, and not both
applications as per the court order.
[23] It was therefore not competent for the court a quo to have dealt with the
condonation application without the first respondent , who had flagrantly
disregarded a court order , applying for it formally. A party applying for
condonation is required to give a full , detailed account of the cause of the delay.
It will be a recipe for disaster for courts to expect other parties to comply with
general known test for the granting of condonation, whilst on the other hand,
another party may be granted condonation without having to apply for it. I am
alive to the fact that each case is decided according to its own merits, but the
merits of the current case do not deserve a deviation from the general known
test. There had to be jurisprudential coherence. The court a quo should have
dismissed the first respondent’s rescission application.
[24] Having dismissed the first respondent’s rescission application, it was now open to
the court a quo to have dealt with the appellant's section 158 application. In
terms of section 158(1)( c) of the LRA, the Labour Court is empowered to make
any arbitration award or settlement agreement an order of the Court. The court a
quo did not deal with the appellant's section 158 application. In my view, there is
sufficient evidence that places this Court in a good position to determine whether
the award issued by the second respondent on 10
September 2013 should be
made an order of court. Therefore, it will serve no purpose to remit the matter
back to the Labour Court.
[25] It is correct that the appellants are not a party to the collective agreement and/or
Resolution 1 of 2008. When this Resolution was signed and implemented, the
unit to which the appellants were ultimat ely appointed was not yet operational,
but still in the process of being established. At that stage, there were no
but still in the process of being established. At that stage, there were no
employees described as S enior State Advocates and S tate Advocates, hence
they could not have been included in the category of employees whom OSD will
cover. Clause 3.1.2 of the Resolution states that the agreement also binds
15
employees of the employer who are not members of any trade union party to the
agreement, who fall within the registered scope of the Council. Clause 1 of the
agreement states that OSD is applicable to legally qualified legal professionals.
The third respondent in her letter addressed to the Minister of Safety and
Security, attaching her ministerial determination, which clarifies certain issues in
the Resolution, had stated that OSD was applicable to all legally qualified
employees who were employed in terms of the Public Service Act 1994, with
retrospective effect from 1 July 2007.
[26] The appellants are all legally qualified employees ; they are not members of any
trade union which is a party to the agreement, and they fall within the registered
scope of the Council. The appellants have been employed in terms of the Public
Service Act, 1994. When the Resolution was signed on 7
February 2008, their
unit was not yet established. Their unit was only established and became
operational in October 2008 after the agreement had been signed. However, they
meet the criteria to fall under the scope of the employees who are covered by
OSD. Therefore, there is nothing to fault the second respondent for arriving at his
conclusion. The decision reached by the second respondent is the one that a
reasonable decision maker could have reached. The award of the second
respondent issued on 10 September 2013 stands to be made an order of court in
terms of section 158(1)(c) of the LRA.
Costs
[27] With regard to costs, this Court has broad discretion under section 179 of LRA to
make orders for payment of costs, according to the requirements of the law and
fairness. In my view, these requirements will be best satisfied by each party
bearing their/its own costs.
Order
1. The appeal is upheld with no order as to costs , and the order of the court
a quo is set aside and substituted with the following:
16
1.1. The applicant’s rescission application is dismissed.
1.2. The arbitration award made by the arbitrator, under the auspices of
the General Public Service Sectoral Bargaining Council
(“GPSSBC”), dated 10
September 2013, is made an order of court.
2. Each party to pay their/its own costs.
M.F. Kganyago AJA
Acting Judge of the Labour Appeal Court
Mahalelo ADJP and Djaje AJA concur.
APPEARANCES:
For appellants: In person
For respondents: Adv DT Skhosana SC, instructed by the State Attorney,
Pretoria