Benteler South Africa (Pty) Ltd v Busakwe and Others (PR177/22) [2026] ZALCPE 16 (12 June 2026)

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Benteler South Africa (Pty) Ltd v Busakwe and Others (PR177/22) [2026] ZALCPE 16 (12 June 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Reportable
Case
No: PR177/22
(1)
Reportable: Yes
(2)
Of interest to other Judges: Yes/No
(3)
Revised
In the matter between:
BENTELER
SOUTH AFRICA (PTY) LTD
Applicant
and
BULELANI
BUSAKWE (cited in his capacity
as the Commissioner of
the Dispute Resolution
Centre
for the Motor Industries Bargaining Council)
First Respondent
THE MOTOR INDUSTRIES
BARGAINING
COUNCIL
– DISPUTE RESOLUTION CENTRE
Second Respondent
AMCU
OBO LANGBOOI, CHRIS
Third Respondent
Heard
:
18 February 2026
Delivered
:
This judgment was handed down
electronically by emailing a copy to the parties on 12 June 2026.
This date is deemed to be the date
of delivery of this judgment.
JUDGMENT
KROON AJ
Introduction
[1]
The
Code of Conduct for Legal Practitioners, Candidate Legal
Practitioners and Juristic Entities
[1]
requires that attorneys:
“
18.14   
perform professional work or work of a kind commonly performed by an
attorney with such a degree of skill,
care or attention, or of such a
quality or standard, as may reasonably be expected of an attorney;”
[2]
An
attorney who entrusts to a secretary a legal function requiring the
professional judgment, diligence, and supervision of the
attorney
himself
[2]
and
who,
when
matters take a turn for the worse, seeks to evade responsibility by
attributing the ensuing bungling of the case to the secretary,
stands
in no different position from a surgeon who delegates the performance
of an appendectomy to a nurse, only to blame the nurse
when the wrong
organ is removed.
[3]
In both
instances, the fault lies not in the subordinate’s failure, but
in the professional’s abdication of his own
non-delegable duty.
[3]
It
was President Harry Truman who famously said, “
the
buck stops here
”.
[4]
Not so, says the attorney responsible for the prosecution of the
review application in this matter. For him, the buck stopped
elsewhere. It stopped with an allegedly delinquent secretary who, so
he said, neglected to properly monitor and supervise the file.
This
is a cautionary tale of an attorney who failed to prosecute a review
with reasonable care and diligence and, when confronted
by the
predictable outworking of his conduct, the lapsing of the review
application, sought to make a scapegoat, what is termed
in Afrikaans
a “
sondebok,
”
[5]
of a secretary. The lesson is that, whilst many legal secretaries are
highly competent and provide invaluable assistance in the

administration of a legal practice, legal practitioners must be
astute not to outsource to secretaries that which requires the

practitioner’s own independent judgment and application of
mind.
[4]
It is against this backdrop that the Court
adjudicates an opposed application for the reinstatement of a lapsed
review application.
The review application concerns an attack on an
arbitration award that determined that Mr Langbooi's dismissal on 12
November 2020
for misconduct was substantively unfair and that he was
to be reinstated. For ease of reference, the Applicant will be
referred
to as Benteler, the First Respondent as the Arbitrator, the
Second Respondent as the Bargaining Council and the Third Respondent,

which acted on behalf of Mr Langbooi, as AMCU.
Is the reinstatement
application competent?
[5]
A
feature of the reinstatement application is that the review
application sought to be reinstated is itself two months out of time;

yet there is no condonation application for the failure to comply
with the peremptory six-week time period.
[6]
This means that, even if reinstated, the review application would
still not be pending before the Court. In
Cross
Border Road Transport Agency v Mpato
and
Others,
[7]
the
Court held as follows:
“
The
result is that the
jurisdictional
prerequisites for the review are non-existent
in that
there is no application
for condonation
, nor has there
been service of the review.  Accordingly, there is no review
application that complies with the rules of this
court.
In
the circumstances, there is no process pending
..”
(own emphasis)
[6]
In
the absence of a condonation application for the late lodging of the
review application, there will be no
lis
for the Court to adjudicate. The Court will have no jurisdiction to
entertain the merits of the review application, even if it
were
reinstated.
[8]
The reason
is that, unlike time periods contained in the Rules, statutory time
periods affect jurisdiction. Compliance with
the stipulated six-week
period or a successful condonation application constitutes a
jurisdictional fact which must exist before
the Court can consider
the review application.
[7]
The
natural question which arises is whether it is competent to reinstate
a review application over which the Court will have no
jurisdiction.
The purpose of reinstating a review application is, self-evidently,
to place it before the Court, i.e., to change
its status from a
lapsed proceeding to a pending proceeding. The predicament
confronting Benteler is that, if the review application
were
reinstated, there would still be no pending application. Any
reinstatement order would be ineffectual and hollow. Granting
such an
order would be an exercise in futility.
[9]
In
Olivia
Kock v the CCMA & Others
[10]
the
Court found that the bringing of a reinstatement application prior to
the record having been filed was “
premature”
and accordingly “
irregular”
.
[11]
[8]
It was not the case that Benteler intended
to apply for condonation. Even when the delay was drawn to Benteler's
attention in AMCU’s
heads of argument, there was evidently a
decision not to apply for condonation. In response to questions by
the Bench about whether
the absence of a condonation application
presented an insurmountable hurdle to the granting of reinstatement,
Ms Moyo, who appeared
on behalf of Benteler, seemed, at least at
times, to concede as much. She, however, focused on the fact that, in
the answering
affidavit in the review application, there was no
objection to the jurisdiction of the Labour Court to entertain the
review application.
Although not clear, the contention appeared to be
that if there was no objection to jurisdiction then it would, for
that reason
alone, become a non-issue.
[9]
This
submission is without merit. A judicial officer is obliged, first and
foremost, to satisfy himself as to his jurisdiction,
irrespective of
whether the parties have raised the point.
[12]
When
it comes to statutory time periods, unless the statute itself
provides otherwise, parties are not permitted, through their
conduct
or by agreement, to clothe the forum hearing the matter with
jurisdiction it would otherwise lack.
[13]
In
Coetzee
,
[14]
the Labour Appeal Court explained that:
“
[73]    
The consent of the parties cannot clothe the Labour Court with
jurisdiction it does not have.
…”
[10]
Even
if it had been Benteler’s case that, on some undetermined
future date, it was of the mind to bring a condonation application

that could not have rescued it from the self-created legal cul-de-sac
in which it now finds itself. This is because an application
is to be
adjudicated on the facts as they stood when the application was
filed. At the time the reinstatement application was filed,
there was
no condonation application for the late delivery of the review
application. In
Phillips
v Grobler & Others,
[15]
the Court, referring with approval to an authority of the High Court
of Zimbabwe, held as follows:
“
[29]
In
Mbanje
v
Ngani
[10]
,
the
following was stated:
“
It
seems to me that the process initiating action in the Court, whether
it be by the issue of a writ of summons or notice of motion,
has the
effect of freezing the rights of the parties at the time that it is
filed in the registry. So that, if at the time action
was instituted,
a right of action had not accrued to the plaintiff or applicant, as
the case may be, then no cause of action is
established by the
initiating process.”
[30]   
When the application was launched by the first respondent, he in my
view, did not have a “complete”
cause of action against
the appellant. This in my view, is not a mere technical point
affecting some provision of adjectival law,
as it strikes at the very
root of the application. ...”
[11]
Ntoyakhe
v Minister of Safety and Security and Others
[16]
followed
Director
of Hospital Services v Mistry
[17]
in which Diemont JA explained that it is not permissible for a party
to rely on facts that arose after the application was launched.
That
would be, as is often said, to seek to breathe life into a dead
application.
Ntoyakhe
referred
to the “
established
principle
”
in terms of which “
...
the cause of action relied upon by a litigant must exist at the time
that the proceedings are launched, ie when the papers are
filed with
the Registrar
.”
[18]
[12]
In the circumstances, what was required, at
a minimum, was that the reinstatement application be coupled with an
application for
condonation of the late delivery of the review
application. The failure to apply for condonation is dispositive of
the reinstatement
application.
The
Overberg
principle
[13]
There
is a further principle at play. In
Overberg
[19]
Lagrange J explained that an applicant who is seeking the
reinstatement of a review application is obliged to get its house in

order before bringing such an application. This is achieved by the
applicant seeking an indulgence to revive a review application,

actively doing what it can to remedy the failure which led to the
review application being deemed withdrawn and taking all steps

reasonably necessary to ensure that the review application will be
ready for adjudication if reinstated.
[20]
Although this Judgment was overturned on appeal,
[21]
it was on a different basis. It follows that guidance may still be
sought from the (undisturbed) reasoning pertaining to the
requirements
of a successful reinstatement application, which
reasoning the Court finds to be cogent and persuasive.
[22]
The sentiments expressed in
Overberg
have, in any event, been endorsed by this Court as by the Labour
Appeal Court in
National
Union of Metalworkers of South Africa obo Members v Defy Appliances
(Pty) Ltd and others.
[23]
I quote:
“
[15]   
As emphasised in Overberg District Municipality v Independent
Municipal and Allied Trade Union on behalf
of Spangenberg and others,
a party seeking to revive a deemed withdrawn application must
demonstrate that it has acted promptly
in launching the reinstatement
application and has taken bona fide steps to ensure the expeditious
finalisation of the matter if
reinstated
.”
[14]
In
this matter, the house of Benteler is in disarray. The decision not
to bring a condonation application together with the reinstatement

application is, in the Court’s view, equally fatal on an
application of the principle that, for want of a better expression,
a
litigant applying for the reinstatement of a lapsed review
application is required, as far as possible, to ensure that that
review application is ripe for finalisation. To compound matters, the
record, belatedly filed, was materially incomplete. It comprised
only
the transcript of the evidence. The documentary component (the
exhibits and Bargaining Council process) was omitted. AMCU
pointed
out this omission in the affidavit deposed to in answer to the
reinstatement application. Benteler did not file a replying

affidavit. Lastly, Benteler has also not timeously applied for a date
within the six months prescribed by Section 145(5) of the
LRA, and
there is no application for condonation.
[24]
In all the circumstances, the application for reinstatement also
falls to be dismissed applying what may be termed the
Overberg
principle.
Has Benteler
demonstrated prospects of success?
[15]
Even if the Court is wrong when it comes to
the competency of the application and its conclusion that the
reinstatement application
should, in any event, fail because Benteler
did not take steps to ensure that its house was in order prior to the
bringing of the
reinstatement application, there is a further
impassable obstacle facing Benteler. It is that, by reason of the
absence of a condonation
application for the late delivery of the
review application, it cannot be said that the review application
enjoys prospects of
success.
[16]
A
reinstatement application is akin to a condonation application. The
primary obligations resting on an applicant for an indulgence
of this
nature are to prove both a reasonable explanation for the delay as
well as prospects of success. It has been held that
a heightened test
applies to condonation applications in employment disputes.
[25]
At the end of the day, the Court must be satisfied that it is in the
interests of justice to grant the application.
[26]
As
was pointed out in the seminal case of
Melane
,
[27]
there is no point in granting condonation if there are no prospects
of success. In this matter, the natural question that arises
is: How
can it conceivably be contended that the review application has
prospects of success if the position is that, if it were
reinstated,
the Court would have no jurisdiction to adjudicate it?
[28]
[17]
It
would be to extend the practicalities to unacceptable lengths to
expect the Court to grant the reinstatement application, as
it were,
in the dark and without knowing whether Benteler will even bring a
condonation application and, if it did, what it’s
explanation
for the considerable delay would be, if indeed there was such an
explanation. There would also be a need for Benteler
to explain the
delay in the bringing of the condonation application, it being trite
that a condonation application should be brought
as soon as the need
for one arises. As matters stand, given that the review application
was launched on 3 November 2022, more
than three and a half
years have passed and there is still no condonation application for
the late delivery of the review application.
In
Aspen
Holdings Pty Ltd and Another v Phelane and Another
,
the Labour Appeal Court held that a decision by the Labour Court to
grant condonation in the face of an unexplained 36-day
[29]
delay
preceding the bringing of the condonation application (compare this
to the 1,303-day delay in the current matter) was, in
and of itself,
fatal, rendering the granting of condonation by the Labour Court
“
improper”.
[30]
The explanation for
the delay
Introduction
[18]
In the light of the circumstance that the
reinstatement application is irregular to the extent that it is
procedurally fatally defective,
the circumstance that Benteler failed
to take the trouble to put its house in order before bringing the
reinstatement application
and the fact that the review application
does not enjoy prospects of success, there can hardly be
justification for going further
and considering the explanation for
the delay. However, given that this issue was canvassed at length
during the hearing, the Court
will do so as a courtesy to the legal
representatives and because embarking on this exercise may provide
some ethical guidance
on the ambit and scope of the overarching duty
resting on legal practitioners to exercise professional oversight
when it comes
to litigation for which they are responsible.
The
factual matrix
[31]
[19]
The award was issued on 29 July 2022. The
review application would therefore have been due for delivery on 9
September 2022. However,
it was only launched on 3 November 2022. It
was thus almost two months late. As mentioned, no condonation
application accompanied
it. There is no explanation for the absence
of a condonation application.
[20]
The
notice of motion and founding affidavit in the reinstatement
application were signed by an attorney previously employed by
Benteler’s legal representatives, Mr Johan Biggs. Mr Biggs left
the employ of Benteler’s legal representatives on an

undisclosed date, but after it was discovered that the review
application had lapsed. AMCU delivered a notice of opposition on
10
November 2022, a week after the review application was launched.
After the review application was delivered, there was an eight-month

delay attendant upon securing the record. The Bargaining Council
filed the record on 20 January 2023. On Benteler’s version,
due
to an email address error by the Registrar, it did not receive
notification that the record was available. Yet, it took no
steps to
follow up during the eight-month period from the date that the record
was due to be provided by the Bargaining Council
[32]
until it received official notification from the Registrar that the
record was available for upliftment. It also did not occur
to
Benteler to bring an application to compel the production of the
record.
[21]
Benteler contends that it only received
notification from the Registrar that the record was ready for
upliftment on 5 July 2023.
In terms of the
Practice Manual of the Labour Court of
South Africa (April 2013) (the Practice Manual), the record needed to
be delivered by 29
September 2023. The transcript was received on 14
August 2023. Mr Biggs states that he took about a week to peruse the
transcript.
He does not explain why he did not peruse the exhibits or
why they did not form part of the record filed. He says that sometime

in the last week of August 2023, he made a decision that a Rule 7A(8)
notice recording that Benteler stood by its affidavit and
notice of
motion should be delivered. He then states that, with this in mind,
he sought to approach Ms Mbuli, the secretary
apparently dealing
with the matter, with a view to requesting her to draft the relevant
Court process. She, however, was absent
“
on
the day
”. Instead of waiting for
her to return, he approached another secretary, Ms Molotsi. He
instructed her to file the record
together with a Rule 7A(8) notice.
It is not clear whether it was envisaged that Ms Molotsi’s
involvement would be temporary
or whether Ms Mbuli would, on her
return, continue to handle the file.
[22]
The Court is not informed as to what
happened after the instruction was given to Ms Molotsi. All that Mr
Biggs says is that Ms Molotsi
subsequently communicated to him,
apparently by word of mouth – Mr Biggs provides no proof of
this communication –
that the matter was awaiting a Court date.
I quote as follows:
“
14. 
Towards the end of September 2023, I enquired about the matter from
Ms Molotsi and was informed that the matter is now
pending a hearing
date in the Labour Court and was placed with other files where all
actions had been taken and which was awaiting
a court date. This was
not at all implausible as a month was ample opportunity for the
record and 7A(8) to be filed, the time period
for the serving and
filing of any opposing papers to lapse and in the absence of opposing
papers for the matter to be indexed and
paginated and a court date to
be applied for. I accordingly did not have any reason to suspect
anything untoward with regards
(sic)
to
this and accepted that the matter was awaiting a court date.”
[23]
In making the allegation that he was under
the (erroneous) impression that a Court date was awaited in order
that the review application
could be heard on an unopposed basis, Mr
Biggs does not deal with the fact that, on receipt of the review
application, AMCU had
delivered a notice of opposition. That aside,
it is common cause that the reality was that the status of the review
application
was worlds apart from that which was allegedly conveyed
to Mr Biggs by Ms Molotsi. Not a single step had been taken to
prosecute
the review application after its lodgement. No record was
filed. No Rule 7A(8) notice was filed. No court process was indexed
and
paginated. The Registrar was not informed in writing, as required
by clause 11.2.7 of the Practice Manual, that the matter was ripe
for
hearing. No application for a Court date had been made under Section
145(5) of the LRA.
[24]
Had Mr Biggs taken the trouble to inspect
the file, it would have been glaringly apparent to him that there was
something very wrong.
Mr Biggs would subsequently seek to justify his
hands-off approach by insisting that he was entitled to rely on what
he viewed
as a foolproof ‘office system’ (the system)
implemented by Benteler’s attorneys of record. I deal with his
explanation
and the system on which he relied, in detail, below.
[25]
The
alarm was raised,
[33]
according to Mr Biggs, when, pursuant to an
ex
parte
contempt of court application brought by AMCU, that application was
subsequently served on Benteler on 27 March 2024. This caused
Mr
Biggs,
for
the first time
,
to inspect the file. On inspecting the file, it dawned on him that
the prosecution of the matter had fallen into dire straits.
 Nothing
had been done to prosecute the review application after it had been
launched almost one and a half years earlier.
Mr Biggs scurried
around trying to put Humpty Dumpty together again. The very next day,
28 March 2024, the record and the Rule
7A(8) notice were delivered.
The
contempt of court application was postponed pending the outcome of
the reinstatement application.
[26]
Mr Biggs explains as follows:
“
16.
When the Applicant received the application for contempt proceedings
on 27 March 2024, same was forwarded to me for the first
time since
the instruction to Ms Molotsi was given at the end of August 2023. I
requested the file as the contempt application
contained allegations
which was completely at odds with the stance of the matter as was
communicated to me and as updated on the
system.
17.
It is only when the file was
perused by me
after the contempt
of court application was received that it came to the attention of
myself, and accordingly the Applicant, that
the record had indeed not
been filed and that the matter had been deemed to be withdrawn in
terms of clause 11.2.7 of the Practice
Manual.”
(own
emphasis)
The system
[27]
The foundation of the explanation furnished
by Mr Biggs for what happened is sourced in, what he terms in his
founding affidavit,
the “
standard
operating procedure
”. Mr Biggs
sought refuge in an office management system which he contends
Benteler’s legal representatives implemented
in the conduct of
litigation relating to review applications. He states that, in terms
of the system, it is the responsibility
of the secretary handling the
matter to manage the file, to determine its status and then to keep a
record of that status, a record
which can then be accessed by any of
the attorneys employed by Benteler’s legal representatives. In
this context, Mr Biggs
referred to the status of each review
application being captured on a “
file
management system
”. Ms Moyo, in
her oral address, referred more informally to a “
diary
”.
Shorn of all elaboration, it was the version of Mr Biggs that a
secretary, who was obliged to keep an accurate record of
what was
happening in the file, misled him about its status. She told him that
the pleadings were closed and that the review application
was
awaiting a hearing date when the correct position was that no further
steps had been taken to prosecute the review application
after it had
been delivered.
[28]
The mechanics of the system were described
as follows:
“
8.
      The standard operating procedure at
the Applicants attorneys of record when it comes to review

applications are strictly adhered to and entails the following:
8.1.     
When the review has been served and filed the matter file is
handed
over to the legal secretaries employed with Snyman Attorneys to
follow up and ensure that the record of proceedings and 7A(5)
is
received from the court in due course;
8.2.     
When the 7A(5) is received, it is the duty of the legal secretaries
to make the necessary arrangements
for the upliftment of the record
from the court and to make the necessary arrangements for the
transcription of the proceedings;
8.3.     
When the transcription of the proceedings are received the
transcription is sent to the attorney
dealing with the matter to
peruse and advise whether or not the Applicant will prepare and file
a supplementary affidavit in terms
of Rule 7A(8) or whether or not
the Applicant will simply deliver a notice that it stands by its
original founding affidavit herein.
8.4.     
If the attorney elects to file a notice to stand by the notice of
motion and founding affidavit, he
or she
will simply instruct the
legal secretaries to perform the necessary actions and the legal
secretaries than draft the applicable
notices in terms of Rule 7A(6)
and Rule 7A(8) and have same signed by an attorney in the office and
attend to the serving and filing
of same
.
8.5.
The legal secretaries then monitor the progress of the matter
,
when an answering affidavit is received the matter is sent back to
the attorney for action and reply and when no answering affidavit
is
received
the legal secretaries will ensure that the file is
indexed and paginated and that the court date is applied for and that
the matter
is set down for hearing
.
8.6.
Attorneys would then only get involved in a matter again when
there are directives for Heads of Argument and when the matter needs

to be presented and argued in court.
9.
In order to monitor the matters
and ensure that no matter falls behind, the progress of each matter
is captured on the file management
system by the applicable secretary
who handled the matter and who completed one of the required
functions therein. In this manner
one can follow the progress of the
matter and where there are any queries same can be looked up in an
instant and feedback provided
to clients and other stakeholders in
any given matter
.”
(own emphasis)
[29]
A bird’s-eye view of the system so
described raises questions. Does it lie within the expertise of the
secretary to make decisions
on what course to follow when a record
has not been filed within the ten days provided for in the Rules? Is
it for the secretary
to determine whether a formal letter should be
written to the Bargaining Council or the CCMA as the case may be, or
whether the
stage has been reached for the bringing of an application
to compel the production of the record? Does it fall within the
expertise
of a secretary to ensure the proper indexing and pagination
of the Court file? Whilst there is obviously nothing objectionable
about asking a secretary to perform the mechanical exercise of
drawing up an index and paginating a Court file, what is not
permitted
is for the legal practitioner to have no involvement in
this process at all. What this means, in practice, is that the legal
practitioner
is required, for example, to check that there are no
duplicates or unnecessary documents, that no essential documents have
been
omitted, that the annexures have been properly described, that
the documents are properly ordered, and so on.
[30]
More
importantly, the persons in charge of evaluating and assessing the
status of the litigation in respect of a particular review

application, the ‘
generals
,’
as it were, are, in terms of the system, the secretaries (not the
attorneys). It is the secretaries who have the obligation
to “...
monitor
the progress of the matter
”.
[34]
They perform this task without the benefit of supervision from the
attorneys. Attorneys, on the other hand, would, so to speak,
make
cameo contributions to the respective review applications as and when
requested by the secretaries. It was not made clear
whether a file
was assigned to a particular secretary or whether the secretaries
worked jointly on all files. What does seem clear
is that the
respective attorneys working for the firm engaged by Benteler did not
have their own secretaries.
[35]
[31]
It became apparent during argument that the
system is developed in such a way that the attorney allocated to the
matter is not required
to have personal knowledge of what is
happening in the file. It is the secretaries who are the repositories
of this knowledge.
Ms Moyo, who appeared on behalf of Benteler,
explained that it was the secretaries' function to coordinate the
litigation by monitoring
and supervising the progress of the files.
In practice, this meant that the secretaries would draw up a diary
for each matter,
reflecting its status. The attorney who has been
allocated the matter, or any other attorney called upon to step into
the breach
should the principal attorney not be available, could then
rely on the diary to establish the status of the file without having

to embark on the onerous exercise of opening the file and reading its
contents inclusive of the Court process. She further explained
that
whilst a particular attorney may be allocated a matter, it was not
uncommon for other attorneys (from the same firm) to take
steps in
the prosecution of the matter, such as signing the requisite Court
documentation. The different attorneys involved in
a matter, however,
did not liaise with each other regarding the steps each had taken.
Rather, each attorney involved in the matter
would liaise with the
secretary who happened to be handling it at the time. The secretary
is the focal point, the one managing
the file, the only person
required to have firsthand knowledge of all the steps taken in the
litigation. It is for the secretary
(not the attorney) to identify
the next step to be taken in the litigation and then to record it in
the diary.
[32]
The Bench posed questions regarding the
implications of such a system.  Was it not the duty of the
attorney responsible for
the file to make the discretionary decisions
about the status of the matter and to decide what steps needed to be
taken to protect
the client’s interests? Should it not be a
requirement of any file management system that the attorney allocated
the matter
at least have direct knowledge of the contents of the
file? Whilst one can understand a client relying on the say-so of his
attorney
that a matter was progressing appropriately, did it, on the
other hand, lie in the mouth of an attorney to contend that he should

be allowed to rely on the
ipse dixit
of
a secretary as to the status of a file for which he was responsible?
[33]
I quote from one of the exchanges below:
“
COURT
:
And he
[the attorney allocated the
matter]
then does not see either the
notice of the filing notice for the record and he does not see the
rule 7(A)(8) notice?
MS
MOYO
:
He
will see the diary
– on
the –
that there is a
system that will show him what is the status of the matter.
So he will see
“
await hearing
date”.
So we are under the
impression that everything is, is done.
…
COURT
:
…so someone's got to sign the application for the court date.
MS
MOYO
: It could have been anyone.
COURT
:
But there is no suggestion that Mr Biggs could not have done it. I
just find it odd that the Filing Notice, the Rule 7A, the application

for the court date, would he not even have seen,
if
it is his matter
, the
application for the court date...
MS
MOYO
: He would just look at the
updates, the next update, because there is a system in place that
[intervenes]
…
COURT
:
So he would not see the filing notice for the record, he would not
see the Rule 7A(8), he would not see the application for the
court
date?
MS
MOYO
: Not necessarily.
COURT
:
Because those are all attorneys'
responsibilities, those are not secretaries' responsibilities
.”
(own emphasis)
[34]
In his affidavit, Mr Biggs further sought
to justify his reliance on the system as follows:
“
15.
     I also pause to mention that this is the
normal process through which hundreds of review applications
have
successfully run and the process works as the legal secretaries are
quick to engage with the attorneys on anything that is
unexpected or
may delay the matter. ....”
[35]
The immediate difficulty with this
statement is that, when it comes to the conduct of litigation, it
should not be the secretaries
who are required to determine whether,
in their view, a legal issue has arisen in a review application which
deserves the attention
of an attorney. It is not for a secretary to
make a judgment whether an event in the litigation qualifies as
“
unexpected
”
or whether a state of affairs “
may
delay the
matter
”.
In making the statement, which he did, Mr Biggs failed to appreciate
that the very act of deciding whether there is an
issue with the
prosecution of the review application is itself a professional
judgment, something falling outside the bailiwick
of a secretary.
[36]
Mr Biggs, in commending the merits of the
system, stated as follows:
“
10.
     The system has worked for the Applicants
attorneys for many years, have
(sic)
not failed before and was a system that ensured
that the running and progress of matters are not only actively and
positively monitored
but are centralised so that any person can
effectively run with a matter in the event of an attorney being sick
or unable to attend
to a matter when the need arises. This being
said, when an attorneys is available the function would remain with
that specific
attorney.”
[37]
This paragraph is problematic at several
levels. Firstly, the Court cannot help but view the bald assertion by
Mr Biggs that the
system has “
for
many years
” proven infallible,
with a degree of scepticism. The person making the assertion is,
after all, the same person who was ignorant
of what transpired in his
own file. One must then ask on what foundation he could possibly
claim any authority to comment on the
files of other attorneys.
Secondly, the fact that a firm of attorneys may have, in the past,
fortuitously so, escaped the consequences
of a flawed and fragile
system is neither here nor there. Thirdly, the statement that the
system ensures the “
running and
progress of matters
” is “
actively
and positively monitored
” does
not address as to who should be doing the monitoring. The nerve
centre of an attorney’s practice should be comprised
of the
attorneys themselves. The system, however, appears to contemplate a
hub of secretaries coordinating the litigation. Mr Biggs
also
extolled the virtues of the management of matters being
“
centralised
”.
But again, the Court is constrained to ask, at what point should the
management of a file be “
centralised
”?
Should the management of a file be centralised within a team of
secretaries or should it be centred on the responsible
attorney?
[38]
As
mentioned above, Ms Moyo explained, in line with what was stated in
the affidavit deposed to by Mr Biggs, that there can be no
guarantee
that the same attorney will consistently be involved in the
management of a file. In terms of the system, the identities
of the
attorneys who play a role in the litigation pertaining to a
particular file are left to fate. Immediate availability in
the form
of physical presence in the office is the determining factor. It was
conveyed to the Court by Ms Moyo that it was not
an infrequent
occurrence for an attorney to be out of the office, with the result
that, instead of waiting for the attorney to
return to the office or
communicating by way of telephone or email with that attorney, the
matter was then passed on to another
attorney who then had to step
into the shoes of the attorney conducting the litigation. In terms of
the system, contrary to trite
professional standards, there was no
obligation on the attorney allocated the matter to acquaint himself
with developments in the
file upon his return to the office. Ms Moyo
further explained that the different attorneys required to deal with
a particular matter
did not liaise with each other or, for that
matter, with the attorney who had been allocated to the matter. As
mentioned earlier,
the various attorneys liaised with the secretary
handling the matter. That the system allowed for this type of
interchangeability
of attorneys constituted a further reason why Mr
Biggs could not be faulted for not knowing what was going on in his
own review
application, so ran the reasoning. The arrangement
embraced by the system is irreconcilable with the principle that an
attorney
is not permitted to rely on the fact that he is working
“
under
pressure
”
or is out of the office attending to other matters to explain a
failure to properly supervise the prosecution of an application
for
which he is responsible.
[36]
This is in addition to the fact that the lack of coordination amongst
attorneys would, in the Court’s view, inevitably serve
to
further diffuse professional responsibility.
[39]
Looking at the system as a whole, the
reader may be forgiven for gaining the impression that the system, so
described by Mr Biggs
and as propounded by Ms Moyo in her address,
exhibits characteristics of a production plant with an assembly line,
where cases
are mechanically moved from one stage to the next under
the direction and supervision of secretaries. The consequence may be,
as
was borne out in this case, that while the file moves along, the
case does not. There is, self-evidently, nothing wrong with a firm
of
attorneys implementing a system that is efficient and fosters maximum
productivity. Indeed, a properly maintained diary system
is a
sine
qua non
and is indispensable to the
efficient operation of an attorney’s firm, particularly in an
era of extensive regulation. The
jurisprudence of labour law occupies
a distinct position within the broader legal landscape. The statutory
objective of the effective
and thus expeditious resolution of labour
disputes is reflected in a procedural framework characterised by
compressed time periods.
Against this backdrop, it is incumbent upon
attorneys’ firms to ensure that administrative systems are
implemented which
place practitioners in a position to monitor and
safeguard compliance with those time periods. However, it is not
permissible to
allow the pursuit of productivity, or more accurately
profit, to serve as a basis for creating a system implemented
at
the expense
of professional oversight.
No administrative system should handicap, or worse, disable attorneys
from complying with their ethical
duties and, in particular, their
duty to prosecute cases with reasonable care and diligence. In
developing a system which utilises
administrative staff to assist
with diarisation and file management, it should be borne in mind that
the prosecution of a claim
itself is not a clerical or administrative
matter. Ordinarily, the taking of each step in litigation requires
the exercise of an
independent discretion by the legal practitioner
in charge of the file. Whilst it is not the place of a Court to be
prescriptive
as to the type of system that needs to be implemented,
it would venture to suggest that, in this matter, it would have gone
a long
way to averting the ensuing failure to prosecute the review
application if it had been a requirement of the system that the
secretary
update the diary
in
consultation
with the attorney
responsible for the file. That way the responsible attorney, having
had an opportunity to give due consideration
to the contents of the
file, would be in a position to endorse, vary or substitute the
assessment of the secretary as to the status
of the file.
[40]
The
Court is not so naive as to be ignorant of the possibility that, for
self-serving reasons, Mr Biggs may have simplified, even

misrepresented, how the system worked and thus exaggerated the lack
of participation of attorneys to shield his conduct from
scrutiny.
[37]
The more the
secretaries are required, in terms of the system, to accept
responsibility for overseeing a file, the more scope Mr
Biggs has to
contend, albeit disingenuously, that he, personally, was not at
fault. The difficulty, however, is that when Mr Biggs
left the
employ of Benteler’s legal representatives, and the matter was
taken over by another attorney, there was no attempt
to correct or
even clarify what is contained in the founding affidavit regarding
the description of the system and how it worked.
The opposite
occurred. The heads of argument reaffirmed, indeed entrenched, the
position taken in the founding affidavit by Mr
Biggs, as did Ms Moyo
in her address.
Analysis of the
explanation
[41]
The reinstatement application was
mistakenly formulated in that it erroneously referred to clause
11.2.7 of the Practice Manual.
The review application, however,
lapsed because of the operation of clause 11.2.3 of the Practice
Manual, which was triggered by
the record being filed outside the
mandatory 60-day time period. There was a six-month delay when it
came to the filing of the
record, which delay must be assessed
against the pattern of dilatory conduct accompanying the prosecution
of the review application,
inclusive of the tardiness accompanying
the bringing of the review application (it was brought substantially
out of time
sans
a condonation application) and the subsequent failure to diligently
seek the production of the record.
[42]
In assessing the six-month delay, it is
important to bear in mind that non-compliance with the 60-day period
only came to light
because AMCU instituted contempt of court
proceedings. This was not a case of Benteler identifying and
rectifying its own shortcomings.
Had AMCU not launched the contempt
proceedings, it is impossible to know how long the failure to
prosecute the review application
would have remained undetected. This
is so because, on Benteler’s version, it laboured under the
impression that the matter
was ripe for hearing, and that there was
nothing further to be done other than to await the allocation of a
hearing date by the
Court.
[43]
There was no explanation as to how and why
the secretary, Ms Molotsi, could have made a mistake of this
magnitude. In response to
questions posed by the Court, Ms Moyo, from
the Bar, speculated that it was because she was “
new
”.
For this reason she may not have understood how the system worked. If
it is true that Ms Molotsi was newly appointed
and still in the
process of familiarising herself as to how the system worked, then
all the more reason would it have been imperative
for Mr Biggs
to have exercised close and continuous supervision over the file, the
principle being that the degree of supervision
required depends on
the known ability of the employee to whom work is delegated.
[44]
Mr Biggs states that he investigated
the cause of the failure to prosecute the review application. As
mentioned, he says that
it was only when he conducted the
investigation that he, for the first time, inspected the file and
concluded that he had been
misled by Ms Molotsi. The problem he faced
in his investigation, so he said, was that Ms Molotsi had “
resigned
”,
apparently unlawfully, in that after taking annual leave in December
2023, she, without notice, informed Benteler’s
legal
representatives that she would not be returning to work. There was
thus, in the words of Mr Biggs, no “
handover
of matters
”. This, in turn, meant
that he could not furnish the Court with an explanation as to why he
had been given the “
incorrect
information
”. For reasons which
are not clear, Mr Biggs did not, as part of his investigation,
ask Ms Mbuli, to whom the file had
initially been allocated and
presumably returned, whether she could shed any light on the reasons
for the failure. He also did
not make any attempt to contact Ms
Molotsi for an explanation.
[45]
The investigation by Mr Biggs was, in any
event, beside the point and in truth a red herring. If anyone should
have been the subject
of an investigation, it was the one conducting
it, Mr Biggs himself.  Mr Biggs’ focus on what was, at
best, a secondary
issue (the conduct of the secretary) bears
comparison to the proverbial rearrangement of deck chairs on the
Titanic. The fundamental
source of the difficulty, the issue which
loomed over the matter, was the absence of any professional
oversight. The last person
who should have been investigating a
failure to prosecute a review application where the problem was a
lack of professional oversight,
would be the attorney who was himself
responsible for the lack of professional oversight.
[46]
I return to the crux of the explanation
furnished by Mr Biggs. He contends that, relying on a
representation made to him by
a secretary, he was under the
impression that the prosecution of the review application was on
track and that a court date was
awaited. He formed this impression
without verifying whether the record had been filed. He formed this
impression without verifying
whether a Rule 7A(8) pleading had been
filed. He formed this impression without verifying whether the Court
process had been properly
indexed. He formed this impression without
verifying whether there had been a notification to the Registrar in
terms of clause
11.2.7 of the Practice Manual. He formed this
impression without verifying whether there had been an application
for a court date.
It was submitted that there was nothing untoward
with Mr Biggs relying solely on a representation made by a secretary
regarding
the status of a file under his control. This was because
the system contemplated that the task of overseeing the litigation
pertaining
to a review application for which a particular attorney
was responsible was not that of the attorney, but rather that of the
secretary.
[47]
The explanation furnished by Mr Biggs
misconceives the nature of a practitioner’s professional
obligations. Whilst purely
administrative or mechanical tasks may
permissibly be performed by support staff, the responsibility for
ensuring compliance with
the Rules and the applicable practice
directives remains solely that of the practitioner. Delegation does
not absolve responsibility;
still less does it justify an attempt to
shift blame to a subordinate member of the support staff for tasks
that remained, throughout,
the legal practitioner's responsibility.
To put it bluntly, although Mr Biggs may not have realised as much,
what he was really
saying was that, the secretary did not properly
perform the job that he (Mr Biggs) was supposed to do. The stance of
Mr Biggs was
akin to a pilot entrusting the operation of an aircraft
to a flight attendant, and when the aircraft meets its doom, the
pilot
disclaims responsibility on the basis that he was not the one
who was at the controls at the time of the crash.
[48]
Attorneys
are required to perform their work with proper assiduity and
expedition. This entails ensuring that sufficient time and
all
necessary care and attention are devoted to the competent performance
of the work. Competent performance includes exercising
such
supervision as may be necessary where a legal practitioner leaves the
performance of work to employees.
[38]
In dealing with the delegation of work to employees, Lewis states as
follows:
“
If
a practitioner leaves the performance of any work to employees he is
bound to ensure competent performance by exercising such
supervision
as may be necessary to achieve it and failure to do so is the reverse
of assiduous. The degree of supervision required
depends upon the
known ability of the employee. … It is to be observed that a
particular error on the part of practitioner,
though negligent, might
not be misconduct, whereas the same error in precisely similar
circumstances on the part of his unqualified
employee who was left in
charge of the matter might confront the practitioner with an
allegation of misconduct on the ground that
supervision was lacking.
This, though curious, is not illogical. As an eminent judge remarked
(not
ex
cathedra
):
‘Make your own mistakes, don’t leave it to the clerks.’”
[39]
[49]
Thus,
the principal attorney handling the matter should always satisfy
himself that the file is in order, that the litigation is
progressing
as it should, and, in particular, that there has been compliance with
the Rules. It has repeatedly been held that it
is unprofessional for
a principal attorney to delegate the management of a file to a
candidate attorney and to leave that candidate
attorney
unsupervised.
[40]
Delegating
the responsibility of running a matter to a secretary amounts to an
even greater abdication of professional responsibility.
[50]
There are two further aspects which, in the
Court’s view, exacerbate matters. Firstly, Mr Biggs did not
explain why, if there
was no “
handover
of matters
” given the manner in
which Ms Molotsi exited her employment, he did not then, at that
point, as the attorney responsible
for the file, inspect it. That
would have been the obvious thing to do. Secondly, Ms Mbuli did not
depose to an affidavit, notwithstanding
AMCU's contention in its
affidavit deposed to in answer to the reinstatement application, that
the allegations regarding her conduct
in the matter constituted
inadmissible hearsay. Had Ms Mbuli deposed to an affidavit, she could
have informed the Court what happened
to the file when she returned,
having been absent on the day Mr Biggs allegedly gave her an
instruction to serve and file the record
and the Rule 7A(8) notice.
She would probably also have been in a position to disclose to the
Court what happened to the file when
Ms Molotsi abruptly left the
employ of Benteler’s attorneys at the end of 2023 and, if that
was when she took over the file,
she could have told the Court what
she discovered and what she told Mr Biggs.
[51]
Insofar
as it may be contended that Benteler should not be penalised for the
negligence of its legal representatives, it is trite
that there is a
limit beyond which a litigant cannot escape the consequences of his
attorney’s lack of diligence or the insufficiency
of an
explanation tendered. In
P
E Bosman Transport Works Committee v Piet Bosman Transport
[41]
the
Court found that even where “
virtually
all the blame can be attributed to the Applicant’s Attorneys,
condonation ought not … to be granted”.
[42]
The
ratio
was that the negligence and dilatoriness on the part of the attorneys
was of such a gross nature, a lack of blameworthiness on
the part of
the client could not salvage the application. The reasoning applies
with equal force to this matter. Added to this
is the circumstance
that there is no indication that Benteler showed any interest in the
conduct of the review application, maintained
close contact with its
attorneys or
bona
fide
believed that its attorneys were competently prosecuting the review
application.
[43]
No person
from Benteler deposed to an affidavit in support of the reinstatement
application.
[52]
All
things considered, in my view, the degree of Benteler's
non-compliance with the time limits was flagrant and gross. The
matter
falls in the category of condonation applications where the
explanation for the substantial delay is so poor that the prospects

of success are rendered irrelevant.
[44]
[53]
Even after
the
failure to prosecute the review application was discovered,
Benteler’s attorneys did not pay the matter the attention
it
deserved. One would have thought that after having discovered the
catastrophic failure to prosecute the review application,
the matter
would have received special attention. This was not to be. No steps
were taken to remedy the absence of the condonation
application for
the late delivery of the review application. Nothing was done about
the fact that, on the face of it, the founding
affidavit in the
review application, as deposed to by Mr Biggs, was irregular and
possibly invalid for the reasons set out below.
To aggravate matters
further, the heads of argument submitted on behalf of Benteler were
pro forma
in
nature and failed to provide any substantial analysis of the relevant
legal and factual issues (see below).
Prejudice
[54]
The
prejudice to Mr Langbooi is obvious. He was dismissed more than half
a decade ago. He has been alienated from the fruits of
an award
issued in his favour almost four years ago, on 29 July 2022. He was
entitled, in the light of the lapsing of the review
application to
assume, as per the sentiments of Sutherland JA in
South
African Police Services v Coericius and Others
,
[45]
that
the review application had been “
abandoned
”
and that Benteler was no longer seeking the relief in the review
application.
[46]
[55]
The
answer to any contention by Benteler that it would be prejudiced were
it to be considered to have forfeited its right of review
is that the
predicament in which it finds itself is of its own making. It cannot
credibly complain when, by virtue of settled legal
principles, the
law attaches consequences to its inaction.
The
common law has long recognised the principle that the law assists the
vigilant, not those who sleep upon their rights (
vigilantibus
non dormientibus iura subveniunt
).
Moreover, adherence to the principle of legality and the rule of law
requires that there be consequences for undue delay in asserting

rights. As the Constitutional Court recognised in
Khumalo
v Member of the Executive Council for Education, KwaZulu-Natal
,
[47]
challenges
to administrative action (which would include the issuance of an
arbitration award) should not be unduly delayed. These
principles
would apply all the more so where the lifeblood of the labour dispute
resolution framework is that of expedition and
economy.
[48]
To hold otherwise would undermine certainty, finality, and the
orderly administration of justice in the legal landscape where the

need for these imperatives is most acute, i.e., labour law
dispute-resolution.
Conclusion
[56]
In conclusion, in the light of the
reservations the Court has about whether the reinstatement
application was competent in the first
place, the fact that Benteler
failed to ensure that its house was in order before bringing the
reinstatement application, the fact
that the review application does
not enjoy prospects of success because it falls to be struck from the
Roll for want of jurisdiction
should it be reinstated and the fact
that there is, in any event, no reasonable explanation for the
substantial delay, the reinstatement
application was destined to
fail.
Costs
[57]
In the Court’s view, the application
was misconceived and procedurally reckless. It should have been
manifestly apparent to
the legal representatives of Benteler that
applying for reinstatement before bringing a condonation application
for the late delivery
of the review application was to put the
proverbial cart before the horse in a fatal manner. There can be no
doubt that this case
falls within the class of cases where law and
fairness demand that costs be awarded against the losing party.
Benteler has sought
a substantial indulgence in a matter where the
application was doomed from the outset.
AMCU requested that a costs order
be made on an attorney-and-client scale. Having carefully reflected
on the matter, in my view,
a punitive costs order of this nature is
more than warranted for the reasons set out below.
[58]
As mentioned, the case presented on behalf
of Benteler was untenable and unarguable. The Court twice asked Ms
Moyo whether, in light
of its concerns that the review application
was out of time and that there was no condonation application, her
client nonetheless
wished to proceed with the application. She
indicated that it did. This stance was adopted at Benteler's peril.
If there was going
to be any hope for Benteler, a more constructive
and sensible approach would have been for Benteler to have reviewed
and reconsidered
its position, to have withdrawn the reinstatement
application and then to have brought a fresh application coupled,
inter alia
,
with an application for condonation for the late lodging of the
review application. But even then, it is difficult to see how
the
application could have been salvaged, given that the explanation for
the delay was clearly untenable.
[59]
The
explanation tendered on behalf of Benteler for the delay and the
litany of procedural missteps and omissions, exhibits a profound
lack
of appreciation for the professional standards to which legal
practitioners are required to adhere. Mr Biggs contrived, in
a manner
which would have made Pontius Pilate blush, to wash his hands of all
accountability by contending that a secretary should
shoulder
responsibility for his lack of professional oversight.
What
is of concern to the Court is the lack of candour in the explanation
furnished by him. Mr Biggs is intentionally unclear as
to what
actually occurred after he signed the notice of motion. In an
obfuscatory vein, he does not say that he was, in fact, unavailable

to participate any further in the prosecution of the review
application. The Court cannot
mero
motu
assume that this was the case. Had Mr Biggs, albeit remarkably so,
been unavailable on each occasion when a step would have been

required to have been taken in the litigation, then he should have
stated as much on oath, and he should have furnished the reasons
for
such unavailability. The Court fails to understand why Mr Biggs felt
it necessary to be evasive in his affidavit about the
events which
led to the scuppering of the review application. Added to the fact
that Mr Biggs does not say that he was unavailable
to sign Court
process after the launching of the review application, he,
importantly so, also does not expressly say that he laboured
under
the mistaken impression that other attorneys took all the necessary
steps, after the launching of the review application,
to ensure that
it was ripe for hearing. On a charitable reading of his affidavit, he
appears to have cheerfully assumed that other
attorneys (he does not
know who they are) had effectively taken over the prosecution of the
review application, for which he was
responsible. Although it is
unnecessary for the Court to make a finding on whether Mr Biggs is
telling the truth given the fact
that, on his own version, he
conducted the litigation in a manner which was reckless (and for that
reason his explanation falls
to be rejected out of hand), the failure
by Mr Biggs to take the Court into his confidence, when it comes
to these critical
facts, casts serious doubt on his allegation that
he was genuinely misled as alleged. As has often been said, when it
comes to
seeking an indulgence of this nature, what is required is an
explanation containing sufficient particulars to place the Court in
a
position where it can properly assess the conduct and motives of the
applicant.
[49]
Allied to this
requirement is the truism that witnesses who seek to mislead the
Court will provide as narrow a front as possible
for fear of
detection or contradiction.
[50]
[60]
The
shortcomings in the explanation furnished by Mr Biggs do not end
there. On his own version, he failed to utilise the very system
that
lies at the heart of his justification for the conduct in question.
Mr Biggs does not expressly allege that, the conversation
with Ms
Molotsi aside, he took the time, to access the diary himself. Even
during his investigation, there is no indication that
he bothered to
check what the diary actually recorded. The high-water mark of his
justification for his conduct is that, in circumstances
which are not
elaborated on, Ms Molotsi verbally misled him.
[51]
For all one knows, the discussion which allegedly occurred between Mr
Biggs and Ms Molotsi took place,
en
passant
,
at the water cooler in an office corridor. Stripped of all
embroidery, the fact is that Mr Biggs uncritically accepted, as

authoritative, an unsupported representation made by a newly
appointed secretary, that the review application was unopposed and

ripe for hearing, this notwithstanding the fact that a notice of
opposition had been delivered. He did so in circumstances where
he
had not seen the diary, had no substantive knowledge of the file or
its procedural history post the launching of the review
application.
Outrageously, he did so in circumstances where he had taken no
independent steps to verify the account given to him
by the newly
appointed secretary.
[61]
Attempts made by legal practitioners to
deflect responsibility onto staff are, rightly so, viewed as
aggravating, particularly where
candour is lacking.
The
disingenuous explanation, coupled with the lack of candour apparent
from the decision by Mr Biggs not to take the Court
into his
confidence, drives the Court to the conclusion that there has been a
calculated attempt to muddy the waters and to sidetrack
the Court by
diverting its attention from the real issue, which is whether
Benteler’s attorneys exercised professional oversight
in the
prosecution of the review application. The strategy employed by
Benteler took the form of a refrain in terms which there
were
repeated attempts to invoke the system as a vehicle to obscure
professional responsibility. The case advanced fails to appreciate

that, in the final analysis, attorneys are not permitted to transfer
professional responsibilities to secretarial staff under the
guise of
office procedure. The explanation for the sorry state of affairs is,
at its core, so contrived that it can scarcely be
regarded as having
been presented as a
bona fide
one
.
[62]
In the wake of the manifest neglect of the
prosecution of the review application, what was required, upon its
discovery, was a degree
of soul searching, an honest reckoning.
Benteler did not take advantage of what was an occasion for
introspection. What it offered
up was a reactive response which took
the form of an exercise in defensive manoeuvring where blame was
impermissibly shifted onto
a secretary. In
Grootboom
the Constitutional Court commented on
the importance of legal practitioners acknowledging ineptitude and
remissness where this occurs,
of expressing contrition where
circumstances demand:
“
[27]    
... However, as the official in charge of the office [the attorney]
has offered her apologies to this
Court for the inconvenience. This
evinces her appreciation for her duty and responsibility to
the Court, her clients and other
parties to the litigation.
....”
[63]
It is the attorney, not the secretary, who
owes a fiduciary duty to the client to fulfil the litigation mandate
with reasonable
skill. Mr Biggs, being the responsible attorney,
should have acknowledged, in Truman-esque fashion, that when it comes
to the litigation
which was to be conducted under his watch, the buck
stopped with him. The circumstances of this matter demand more than
an acknowledgement
of wrongdoing and an expression of remorse. The
Court has detailed the host of respects in which professional
standards were not
met. These include the inexplicable failure to
apply for condonation for the late delivery of the review
application, the failure
to take steps to secure the timeous
production of the record and, most egregiously, the complete failure
to manage and oversee
the legal proceedings relating to the review
application. I emphasise that the history of the matter reflects a
wholesale dereliction
in the prosecution of the review application,
an effective abandonment of it. This is not a matter where there was
merely a minor
or isolated error made in the context of an otherwise
valid and functioning system . The complete failure of oversight
leads, inexorably,
indeed ineluctably, to the foundering of the
reinstatement application. The upshot is that Benteler has forfeited
its right to
challenge the arbitration award. It must now comply with
it. That being so, the question of an apology aside, the ethically
appropriate
course to follow would be for Ms Moyo, who the Court
understands has taken the matter over from Mr Biggs, to make her
client (Benteler)
aware that it has the recourse, if so minded, of
seeking independent legal advice on whether a claim against
Benteler’s legal
representatives may exist arising out of the
professional misconduct described in this judgment.
Heads of argument
[64]
Heads
of Argument are important because Judges usually read them first to
obtain a roadmap of what the case is about. Properly drafted,
they
may serve as a template for a judgment. Heads of argument should
engage fairly with the evidence and the material issues requiring

determination. They are indispensable to the proper administration of
justice because they assist the Court in coming to the correct

decision.
[52]
Their
preparation is an exacting and labour-intensive task. It requires
time, analysis and much reflection.
[53]
When
legal practitioners do not draft heads of argument which assist the
Court, the burden of identifying and distilling the issues
falls on
the Court and compels it to perform work that should properly have
been undertaken by the legal representatives.
[65]
The
Court afforded Ms Moyo an opportunity to make representations on
whether Benteler's attorneys should be precluded from levying
a fee
for the heads of argument as occurred in
Early
Bird Farm (Pty) Ltd v Food and Allied Workers Union and
Others
[54]
.
This opportunity was given because the document styled as heads of
argument was generated almost entirely by copying and pasting,

literally
verbatim
,
the affidavit deposed to by Mr Biggs. The exercise was undertaken
with such a lack of care that even the pronouns and other references

appropriate only to the affidavit were left unaltered. The result was
that the heads of argument read like a first-person statement
of
evidence. The only cognisable difference between the affidavit and
the heads of argument was that, tacked onto the end of the
purported
heads of argument, were a handful of authorities which made reference
to general principles applicable to reinstatement
applications. There
was no indication as to how the general principles applied to the
peculiar facts of the matter. The heads of
argument did not address
the material issues arising from the points raised in the answering
affidavit, such as the fact that the
review application was out of
time, the allegation that the record is materially incomplete, and
the allegation that Mr Biggs failed
to exercise reasonable care in
the matter.
[66]
Ms Moyo signed the heads of argument. When
the Court enquired from her why they took the form which they did,
she, remarkably, sought
to distance herself from them. She explained
that the heads of argument were drawn by a “
junior
attorney
”,
Mr Wesley Perrin. She conceded that she had done no more than
rubber-stamp them even though it was apparent that the errors
therein
were so obvious that they ought to have been detected and corrected
on a cursory view of the document. Ms Moyo appeared
to contend that,
for this reason itself (the fact that she had not applied her mind to
the content of the heads of argument before
signing them), she should
not be held responsible for their content. A legal practitioner, by
signing a Court document, confirms
that he understands the document,
has applied his mind to it and stands by it. He is not permitted to
sign a legal document and
then, in response to uncomfortable
questions from the Bench, put forward a disclaimer. If a practitioner
is not prepared to stand
by a document, the proper course would be
for that practitioner not to sign it and withdraw it or to seek leave
to amend or amplify
it. As mentioned elsewhere, practitioners have an
overarching duty to the Court, and this includes, at all material
times, exercising
independent professional judgment; disowning signed
heads suggests a failure of that duty. The failure by Ms Moyo to
properly apply
her mind to the heads of argument drafted by the
junior attorney, and to amend, amplify or supplement where necessary,
constitutes
yet a further manifestation of the lack of supervision
and professional oversight which has plagued this litigation from
inception
to completion.
Misrepresentation by
Mr Biggs in his affidavit
[67]
It
was hoped that the discussion about the inadequacy of the heads of
argument would mark the end of this troublesome matter.
Unfortunately,
it does not. There is a further matter of some gravity
which needs to be addressed. The Court, again
sua
sponte
,
enquired as to how it came to be that the deponents to the respective
affidavits in the review and reinstatement applications,
bore
identical names. Both affidavits were signed by Johan Biggs
[55]
but in different capacities. In the reinstatement application, Mr
Biggs described himself as a “...
practicing
(sic)
attorney
at Snymans Attorneys, the legal representatives for the Applicant
”.
In the review application, Mr Biggs described himself as “
an
adult female and human resources manager employed with the
Applicant”.
[68]
Whilst this curious state of affairs may
theoretically have been explained away as a remarkable coincidence,
what raises suspicion
and concern is that, leaving aside that Mr
Biggs is not a female as recorded in the affidavit deposed to in
support of the review
application, the signatures of Mr Johan Biggs,
the attorney, and Mr Johan Biggs, the human resources manager,
appear, on the face
of it, to match each other. Screenshots of the
respective signatures are juxtaposed against each other below:
The signature of Mr
Biggs                   

The signature of Mr Biggs in
in the review the
application                
reinstatement
application
[69]
The initials of Mr Biggs on the individual
pages of the two affidavits were also similar to each other and an
analysis of the other
documentation signed by Mr Biggs such as
the Rule 7A(8) notice provides further
prima
facie
proof that the signature of Mr
Biggs, the Human Resources Manager, and Mr Biggs, the attorney,
resembled each other. Confronted
by this unusual state of affairs,
the Court was compelled to ask how Mr Biggs came to depose to the two
affidavits in different
capacities, one as the attorney conducting
the litigation and one as the human resources manager of the client.
Ms Moyo, who had
apparently not applied her mind to this issue when
preparing for the case, appeared not to know the true identity of her
client's
representative (the human resources manager). She was able
only to vaguely speculate that the signing of the affidavit in
support
of the review application by Mr Biggs was the result of some
unspecified “
mistake
”.
Such an explanation is singularly unhelpful. A false representation
concerning one’s employment status is not readily
explicable as
an innocent error or an oversight, particularly where one is dealing
with an attorney who has made a sworn statement.
It is implausible,
in the extreme, to suggest that an Officer of the Court could, under
oath, accidentally misrepresent that he
was the human resources
manager of a global company based in Kariega (formerly Uitenhage)
when, in truth, he was a labour law attorney
practising in
Johannesburg.
[70]
One
possibility, I put it no higher than that, is that the affidavit to
be deposed to in support of the review application was initially

prepared for signature by Benteler’s human resources manager,
who is a female. The deponent is described in both the body
of the
affidavit and the wording of the oath administration as female. For
reasons not disclosed, the human resources manager did
not depose to
the affidavit that had been prepared for her and the attorney
conducting the litigation (Mr Biggs) took it upon himself
to insert
his name into the affidavit and to sign it, effectively impersonating
the human resources manager. In this regard, the
Court notes that the
affidavit deposed to in support of the review application was
commissioned in the proximity of Benteler’s
attorneys, and not
in Kariega (formerly Uitenhage), where the client was situated.
Another possibility is that, as occurred when
Ms Moyo signed the
heads of argument, a junior attorney had drafted the affidavit to be
deposed to in support of the review application
and Mr Biggs, without
reading it or applying his mind to it, signed it and had it
commissioned.  In ruminating on this baffling,
but concerning,
state of affairs, the Court acknowledges that it has travelled into
the province of speculation. In the Court’s
view, this is a
serious matter. It invites scrutiny as to whether perjury has been
committed. The Court has not, however, heard
from Mr Biggs. It would
accordingly be unwise and unfair to make a finding on this issue. It
is a matter for the Legal Practice
Council.
[56]
Order:
1.
The application to reinstate the review
application is dismissed.
2.
The Applicant is to pay the costs of the
application on an attorney and client scale.
3.
The Applicant’s attorneys are ordered
not to charge any fees in connection with the heads of argument
signed by Ms Moyo.
4.
The issues described in paragraphs 18 to 70
of this judgment are referred to the Legal Practice Council (the LPC)
and the Registrar
is directed to bring this judgment to the attention
of the Gauteng Provincial Office of the LPC for that purpose.
P N KROON
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:             
Ms Moyo of Snyman Attorneys
For the Third Respondent:
Ms Poppesqou of Futcher & Poppesqou Incorporated
[1]
promulgated under the
Legal Practice Act 28 of 2014
[2]
The
masculine gender is used for the sake of conciseness. References to
the masculine gender include, where appropriate, the feminine

gender.
[3]
Cf.
Van
Wyk v Lewis
1924
AD 438
wherein the Court, dealing with a matter relating to alleged
surgical negligence, discussed the question of professional
oversight.
[4]
This well-known phrase expresses the principle that the person in
charge is accountable.
President
Truman reportedly kept a carved wooden sign with this motto on his
desk in the Oval Office.
[5]
Literally sin-goat - a
n
innocent person who is blamed for the mistakes, wrongdoings, or
misfortunes of others, and who unfairly takes the punishment
or
bears the burden.
[6]
In terms of Section 145(1)(a) of the Labour Relations Act No. 66 of
1995 (the LRA), a review application must be brought within
six
weeks.
[7]
[2003]
10 BLLR 992
(LC)
at
994E-F
[8]
Cf.
MEC for
Health, Province of Eastern Cape NO and Another v Kirland
Investments (Pty) Ltd t/a Eye & Laser Institute
2014 (3) SA 219
(SCA) para [27]
[9]
Cf
.
Festive,
A Division of Astral Operations Limited v Commission for
Conciliation, Mediation and Arbitration and Others
(JR1686/15)
[2020] ZALCJHB 178 (31 August 2020) para [11] where the Court,
albeit it in different circumstances, refused to grant
an
application for reinstatement, where doing so would serve no
purpose.
[10]
Case No JR764/18 (31 May 2021)
[11]
para
[57];
See
also the judgment by
Tlhotlhalemaje
J
in
City
of Ekurhuleni Metropolitan Municipality v Lindiwe Khumalo and IMATU
obo Peter Mabone
JR
1398/18) [2023] ZALCJHB 165 (30 May 2023)
para
[22]
[12]
South
African Maritime Safety Authority v McKenzie
2010
(3) SA 601
(SCA);
[2010] 3 All SA 1
(SCA); (2010) 31 ILJ 529 (SCA);
[2010] 5 BLLR 488
(SCA) para [6];
Makhanya
v University of Zululand
(2010 (1) SA 62
(SCA) ;
[2009] 8 BLLR 721
(SCA) ;
[2009] 4 All SA
146
(SCA); (2009) 30 ILJ 1539 (SCA) para [29];
Competition
Commission of South Africa v Standard Bank of South Africa Ltd and
related matters
2020 (4) BCLR 429
(CC) para [200];
Xaba
v Portnet Limited
(2000)
21 ILJ 1739 (LAC)
para
[4.5], Zondo AJP (as he then was) stated:
“
There
is no substance in the appellant’s complaint because
the point
in
limine
raised by the respondent related
to a matter of the jurisdiction of the industrial court and a court
or tribunal is always entitled,
in fact it is obliged, to satisfy
itself that it has jurisdiction before it can deal with a matter
.”
[13]
Ndlambe
Municipality v CCMA & Others
(2008)
29 ILJ 2263 (LC) para [25];
Mayedwa
v General Public Service Sectoral Bargaining Council & Another
(2009) 30 ILJ 2946 (LC);
Bargaining
Council for Hairdressing & Cosmetology Trade (Pretoria) v Smit
t/a Hair Mistique
(2002) 23 ILJ 388 (LC) paras [7] to [12]
[14]
Member
of the Executive Committee of the Western Cape Provincial Government
Health Department v Coetzee & Others
(2015)
36 ILJ 3010 (LAC)
[15]
[2020] 1 All SA 253 (WCC)
[16]
2000 (1) SA 257 (ECD)
[17]
1979 (1) SA 626 (A)
[18]
264E-F
[19]
Overberg
District Municipality (ODM) v IMATU obo Spangenberg and Others
(C
157/18) [2020] ZALCCT 38 (10 June 2020)
[20]
para
[38]
[21]
IMATU
obo Spangenberg and Others v Overberg District Municipality and
Others
[2025]
2 BLLR 137 (LAC)
[22]
Cf
Skulpad
and Another v Department of Health Eastern Cape and Others
[2025]
1 BLLR 70
(LC),
para [13]
[23]
[
2026]
2 BLLR 121 (LAC)
[24]
Department
of Transport v General Public Service Sector Bargaining Council and
Others
(PR
02/21) [2023] ZALCPE 7 (2 May 2023)
paras
[39] to [41]
[25]
National
Union of Metalworkers of SA on behalf of Thilivali v Fry’s
Metals (A Division of Zimco Group) and others
(2015)
36 ILJ 232 (LC)
para [25]
[26]
Samuels
v Old Mutual Bank (2017) 38 ILJ 1790 (LAC)
para
[17]
[27]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531 (A) 532E
[28]
Insofar
as it is not clear, in the view of the Court, it is not necessary to
consider the ‘merits’ of the review application
in
circumstances where an applicant has not demonstrated that the Court
will have jurisdiction to entertain that application.
[29]
[2025]
BLLR 409
(LAC)
[30]
para
[24]
[31]
The
Court is indebted to Ms Poppesqou, who appeared on behalf of AMCU,
for her detailed heads of argument setting out,
inter
alia
,
the applicable chronology.
[32]
As per the Rules, the Bargaining Council was given 10 days to
furnish the record.
[33]
There is an unchallenged allegation in the affidavit deposed to in
answer to the reinstatement application that on 17 January
2024 a
communication demanding compliance with the award was transmitted,
on behalf of AMCU, to Benteler’s legal representatives.
It is
also not disputed that there was no response thereto.
Notwithstanding the fact that the allegation has not been denied,
in
my view it carries little evidential weight because there is no
indication who transmitted the communication and neither the

communication nor proof of its transmission have been attached to
the answering affidavit. The Court will accordingly not hold
this
conclusory assertion against Benteler.
[34]
para [8.5] of the founding affidavit
[35]
It
is clear from his affidavit that Mr Biggs did not have his own
secretary. He would utilise the services of the secretary who
had
been allocated the file.
[36]
Cf
Kgobane
and Another v Minister of Justice
1969
(3) SA 365 (AD) 369B
[37]
Documentation
in the file, as signed by Ms Moyo, suggested that, contrary to what
was stated by Mr Biggs, attorneys do get
involved at the stage
of indexing and pagination.
[38]
Lewis
E.A.L.
Legal
Ethics: A Guide to Professional Conduct for South African Attorneys
(Juta: Cape Town, 1982)
[39]
Legal
Ethics
120
[40]
MEC
for Health Eastern Cape v A.S obo S.S
(842/2023)
[2025] ZASCA 2
(15 January 2025) para [21] in terms of
which the Supreme Court of Appeal castigated an attorney for leaving
the prosecution
of an appeal in the hands of a candidate attorney
who was unsupervised and where the principal attorney was in a
different office.
Mavundla
v MEC: Department of Co-Operative Government and Traditional Affairs
KwaZulu-Natal and Others
2025
(3) SA 534
(KZP) paras [40], [46] and [54].
[41]
1980 (4)
(SA)
794 (A).
[42]
799H.
See also
Blumenthal
v Thomson
1994 2 (SA) 118 (A) 121I-J;
Saloojee
& another NNO v Minister of Community Development
1965
(2) SA 135
(A) 141B-H.
[43]
Cf
Fuller
v Megacor Holdings (Pty) Ltd
[2003]
7 BLLR 711
(LC) para [18]
[44]
Van Wyk
v Unitas Hospital & Another (Open Democratic Advice Centre as
Amicus Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC) paras [31] to [34];
Grootboom
v National Prosecuting Authority and Another
2014
(2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014)
35 ILJ 121 (CC) para [29]
;
National
Education Health and Allied Workers Union obo Mofokeng & Others
v Charlotte Theron Children’s Home
(
2004)
25 ILJ 2195 (LAC) para [23];
Collett
v Commission for Conciliation, Mediation and Arbitration
(
2014)
6 BLLR 523
(LAC) paras [38] and [39];
Chetty
v Baker McKenzie
[2022]
ZALAC 12
; (2022) 43 ILJ 1599 (LAC);
[2022] 8 BLLR 693
(LAC) para
[8].
[45]
[2023] 1 BLLR 28 (LAC)
[46]
para [9]
[47]
[2013] ZACC 49
;
2014 (3) BCLR 333
(CC); (2014) 35 ILJ 613 (CC) para
[73]
[48]
Toyota
SA Motors (Pty) Ltd v CCMA and others
(2016)
37 ILJ 313 (CC) para [1]
[49]
S
ilber
v Ozen Wholesalers (Pty) Ltd
1954
(2) SA 345 (A) 353A
[50]
Cf.
South
African Legal Practice Council v Bobotyana
[2020] 4 All SA 827
(ECG) para [71]
[51]
para
[22] of this judgment
[52]
S v
Ntuli
2003 (4) SA 258
(W) para [16]
[53]
Cf
Heads of argument in courts of appeal
by
LTC Harms, Deputy President of the Supreme Court of Appeal as
published in The Advocate December 2009 where the Learned Judge

recorded as follows:
“…
heads,
like good wine, have to mature.  Leave them for a few days,
print them, and with a red pen revise them.  If time
permits
revise again. And again”
[54]
(2004) 25 ILJ 2135 (LAC) paras [50] and [51].
[55]
For the sake of completeness, I note that, i
n
the affidavit deposed to in support of the review application the
deponent is identified as Johan Ernst Abraham Biggs whilst
in the
affidavit deposed to in support of the reinstatement application,
the deponent is identified as Johan Biggs
[56]
In
the Court’s view, given the conduct described in this
judgment, a referral to the LPC is obligatory in terms of Article

16(1) of the Judicial Code of Conduct.