IN THE LABOUR COURT OF SOUTH AFRICA,
GQEBERHA
Not Reportable
Case no: PR56/20
In the matter between:
VUSUMZI KATE Applicant
and
DEPARTMENT OF CORRECTIONAL SERVICES First Respondent
GPSSBC Second Respondent
JOHN MASHIKA NO Third Respondent
PUMEZA NDABAMBI NO Fourth Respondent
Decided: In Chambers
Delivered: This judgment was handed down electronically by emailing a
copy to the parties on 22 June 2026. This date is deemed to be the da te of
delivery of this judgment.
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
KROON AJ
Overview
[1] In a judgment handed down on 25 February 2026 the Court issued the
following order:
“Order:
1. The application is removed from the roll.
2. The application is not to be re-enrolled until the Court file is in order.
3. The Applicant is given 30 calendar days within which to ensure that
the Court file is to the satisfaction of the Registrar. In so doing, the
Applicant is required to address the issues identified in this
judgment.
4. The costs of the proceedings are reserved.
5. The Applicant’s legal representative is afforded 21 calendar days
within which to provide a full explanation on oath for his conduct as
described above and to make submissions as to why a de bonis
propriis costs order should not be granted. In that affidavit
(supported by confirmatory affidavit(s) where necessary), he is
required to:
5.1 Record any issues which he may have with the recitation of the
facts contained in the judgment.
5.2 Explain why an attempt was only made on 12 or 13 February
2026 to index the Court file when it would have been apparent
3
that indexing and pagination were required after the order
granted on 20 November 2025.
5.3 Explain as to how it came to be that the Applicant’s legal
representative was unaware that the Court file had not been
paginated. The explanation should include:
5.3.1 Details of the attempt(s) made to index the Court file,
including when they were made, how they were made and
who from the office of the Registrar was involved.
5.3.2 All communications relevant to how the Applicant’s legal
representative was informed that the Court file could not
be paginated because it was “with the judge”.
5.4 Set out a detailed timeline of the events which occurred on 19
February 2026 subsequent to the adjournment of the matter and,
in particular, to disclose the times and details of each
communication which he had with an official from the Court
about the file, as well as Ms Govender of the State Attorney
about the file.
5.5 Explain why, when informed by Ms Majola and/or the State
Attorney that he was not supposed to take the Court file out of
the building, the Applicant’s legal representative did not forthwith
return it.”
[2] The factual matrix appears from the judgment of 25 February 2026. I t is not
my intention to repeat same in this judgment.
[3] The gravamen of the complaint about the conduct of the Applicant’s legal
representative is that, after the matter was stood down on 25 February 2026
to be heard the following day , 26 February 2026, he left the Court building
with the court file without the Registrar's permission . His conduct was
aggravated by the distress caused amongst the Court staff. These events
culminated in the C ourt being disinclined to hear the matter and issuing an
order that the Applicant ’s legal representatives be afforded 21 days within
4
which to make representations as to why a costs order de bonis propriis
should not be made against them. The Applicant was furthermore given 30
calendar days within which to ensure that the court file is to the Registrar's
satisfaction.
[4] As to the latter requirement of satisfying the Registrar that the court file is in
order, the Applicant admits non-compliance with this time period. As I
understand the submissions, the Applicant seeks condonation of non -
compliance with the 30 days . It is , however, not the intention of this Court to
deal with this aspect. The correct route is for the Applicant to lodge a proper
condonation application, which can then be considered by the Court hearing
the application.
[5] The explanatory affidavit appears to have been filed on 16 April and then on
22 April 2026. It was thus out of time. There is no formal application for
condonation. The explanation for the late delivery of the explanatory affidavit
is contradictory. On the one hand, the Applicant’s legal representative
contends that he was, for want of a better expression, indisposed because his
father’s brother was ill and he had to attend to him “…from time to time” . On
the other hand , he says, in effect, that he was too busy attending to other
matters to comply with the Court order. Nonetheless, in the Court’s view, it is
in the interest s of justice to have regard to the contents of the affidavit
deposed to by the Applicant’s legal representative.
Failure to ensure that the file was in order
[6] Regarding the unsatisfactory state of the file, including the absence of
indexing and pagination, the explanation is twofold.
[7] Firstly, the Applicant’s legal representative states that he was very busy
during the week in question and , in this regard, lists several matters for which
he was responsible and which were on the roll during the week in question .
This explanation can be disposed of easily. The courts have long since held
This explanation can be disposed of easily. The courts have long since held
that it is no excuse for a practitioner to contend that he is too busy to afford a
5
matter for which he is responsible, the care and diligence it deserves. I quote
from Kgobane and Another v Minister of Justice1 as follows:
“…The attorney for the applicants attributed his neglect to observe the
Rules of this Court and to ensure that his instructions were carried out
to his working under pressure and being away from his office. When an
attorney tells this Court, in effect, that he is too busy to study the Rules
of this Court and to supervise the prosecution of an appeal, his
explanation is quite unacceptable…” 2
[8] The second component of the explanation found expression in an attempt by
the Applicant’s legal representative to shift the blame onto his “assistants”,
including a candidate attorney. Again, this explanation is not acceptable. If the
Applicant’s legal representative was in charge of the file , whilst he is entitled
to delegate certain functions to subordinates and staff underneath him, he
cannot delegate his professional responsibility. 3 What was required was for
the Applicant’s legal representative to properly supervise the persons in his
office to whom he had delegated tasks, to exercise professional oversight. 4
The shifting of blame onto underlings is ordinarily regarded as an aggravating
factor.5
[9] The Court notes further that, in his explanation, the Applicant’s legal
representative says that he will now personally attend to the file. That is
something which should have occurred at the outset, or at least there should
have been proper supervision from the outset.
Taking the file out of the Court building
1 1963 (3) SA 365 (AD)
2 369 A to C
3 AMCU obo Langbooi v Benteler and Others decision (PR177/22) 12 June 2026
4 MEC for Health Eastern Cape v A.S obo S.S (842/2023) [2025] ZASCA 2 (15 January 2025) paras
[15] and [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
principle 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].
5 Benteler para [61]
6
[10] When it comes to the explanation furnished for taking the Court file out of the
building without authorisation, the Applicant’s legal representative states that
he “…got carried away…” and that he had “…so much in [his] head…”.
[11] The explanation so furnished is the type of explanation that falls to be rejected
out of hand. The Court fails to understand how the Applicant’s legal
representative could have been, as it were, swept away in the moment. The
task he was about to perform was not an emotionally charged one. It was a
mundane and clerical one, that of photocopying. The Applicant’s legal
representative was not under pressure. He had the whole day to sort out the
file. No basis was laid in the affidavit to explain why he, so to speak, lost his
objectivity and composure and acted in such an unprofessional and reckless
manner.
[12] What is of further concern to the Court is the lack of detail in the explanation.
As has often been said, albeit in a different context , 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.6
[13] A lack of candour may be illustrated as follows. I f regard is had to paragraphs
5.4 and 5.5 of the order, the Applicant’s legal representative was expressly
required to provide details of when the State Attorney , per Ms Govender,
informed him that he was not allowed to take the Court file out of the building.
He was also required to explain why he did not heed the admonition from the
State Attorney. The Applicant’s legal representative is, however, silent on this
aspect. He does not, in his explanation, provide any detail about when the
State Attorney informed him that he should not take the file out of the Court
building. He also does not disclose to the Court why he did not pay any heed
to the warning given to him by the State Attorney that he was not supposed to
take the file out of the Court building.
take the file out of the Court building.
[14] There was an important reason why the Court required the Applicant’s
attorney to disclose the time when the State Attorney admonished him not to
remove the entire Court file from the building. It is this. The narrative, which is
6 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A
7
contained in the explanation which has been furnished by the Applicant’s
attorney in his affidavit , seeks to give the reader the impression that he was
only informed, or reminded, by the Court staff, of the fact that he should not
be in possession of the file outside of the Court building without authorization,
midway through the exercise of photocopying in the Office of the State
Attorney.
[15] It is , however, common cause that, leaving aside any communications from
the staff of the office of the Registrar with the Applicant’s attorney, he was
also told by the State Attorney, Ms Govender, that he was not allowed to take
the Court file out of the building. If this communication had occurred, as , on
the facts, seems likely, before the Applicant’s attorney had commenced
photocopying the contents of the file , then the narrative in the explanation
would not be accurate. It would mean that the Applicant’s legal representative
was warned to return the file before he even commenced with the exercise of
photocopying. As mentioned, the Court has been left in the dark about this
crucial aspect and, in its view, it is entitled to draw an adverse inference from
the fact that the Applicant’s legal representative failed to take the Court into
his confidence as to when the State Attorney informed him that he should not
take the Court file out of the building.
[16] The Applicant’s legal representative did profusely apologise. Recently, in
Nelson Ma ndela Bay Municipality v Bukula , 7 Prinsloo J , in considering
whether a de bonis propriis cost order should be made, observed that there is
a limit to what an apology can achieve . It cannot undo conduct which justifies
a de bonis propriis cost order. T here comes a stage where legal
representatives must suffer the consequences that the law attaches to their
conduct, and an apology, ex post facto , whilst welcome , if it is genuine, is
insufficient to nullify the conduct and, accordingly, its consequences.
insufficient to nullify the conduct and, accordingly, its consequences.
[17] In all the circumstances, in the Court’s view, this is not a case where the client
should be penalised for the conduct of the Applicant’s legal representative
and that a costs order de bonis propriis is warranted.
7 PR 17323 (12 June 2026)
8
Order
1. The Applicant’s attorney s are ordered to pay the costs occasioned by the
postponement of the matter, inclusive of the appearance costs of both 19 and
20 February 2026, on Scale B de bonis propriis.
_______________________
P N KROON
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr Qotoyi of Mbulelo Qotoyi Attorneys
For the Respondent: Ms. L Ah Shene
Instructed by: Gqeberha State Attorney