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THE LABOUR COURT OF SOUTH AFRICA, GQBERHA
Not Reportable
CASE NO: PR15/2023
In the matter between:
BABALWA MPLATYI Applicant
And
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER KHOSINATHI TERRENCE
MKHWANAZI N.O Second Respondent
STANDARD BANK OF SOUTH AFRICA LIMITED Third Respondent
Heard: 30 April 2026
Delivered: This judgment was handed down electronically by circulation to
the parties’ Legal Representatives by email, publication on the Labour Court
website and release to SAFLII. The date and time for handing - down is
deemed to be 14h00 on 29 July 2026.
(1) Reportable: NO
(2) Of interest to other Judges: Yes
Signature Date
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___________________________________________________________________
JUDGMENT
LALLIE J
[1] This application was brought by the third respondent in the review application.
It seeks an order t o have the review application dismissed. The application is
opposed by the applicant in the review application. In this judgment the
parties will be referred to in the way they appear in the review application.
[2] The third respondent approached this court in terms of rule 41 read with rule
35 of the Labour Court Rules seeking relief that is not specifically provided for
in the rules. The factual background to this matter is that the applicant was
employed by the third respondent. She brought an unfair labour practice
dispute to the second respondent , the Com mission for Conciliation and
Arbitration (the CCMA) in 2021 alleging that the third respondent had
committed an unfair labour practice against her. She was dismissed by the
third respondent before the finalisation of the unfair labour practice dispute.
She subsequently referred an unfair dismissal dispute to the CCMA in 2022.
The 2 disputes were consolidated and arbitrated. O n 21 December 2022 the
second respondent (the commissioner) issued an arbitration award in which
he dismissed both disputes. On 1 February 2023 the applicant launched an
application in this court seeking an order reviewing and setting aside the
arbitration award. The third respondent submitted that the review application
should be dismissed owing to the applicant’s inordinate delay in its
prosecution.
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[3] The facts the third respondent relied on are that after the filing of the review
application it filed its notice of intention to oppose it on 3 March 2023. On 28
August 2025 the applicant delivered an application to compel the CCMA to file
the record of the arbitration proceedings. On 12 September 2025 the CCMA
scheduled a meeting to reconstruct the missing portions of the record for 26
September 2025. At the reconstruction meeting the representative of the third
respondent handed over to the applicant the audio recordings of the missing
parts of the record. On 8 October 2025 the CCMA filed a notice of compliance
in terms of rule 37(7) read with rule 37(2)(b) of the Labour Court Rules. The
third respondent submitted that as of 5 March 2026 when its head of
argument were filed the applicant had not taken a further step other than filing
the review application on 1 February 2023.
[4] The third respondent relied on the maxim ‘vigilantibus non dormientibus lex
subvenit’ in support of its argument that he applicant’s failure to prosecute her
review application expeditiously may non-suit her and effectively dispose of it .
It was argued on behalf of the third respondent that the maxim should be
applied in this case as this court did in BP Southern Africa (Pty) Ltd v National
Bargaining Counsil for Chemical Industry and Others
1. In BP Southern Africa
(Supra) the court referred with approval to Sishuba v National Commissioner
of the South African Police Service 2 when the court re- affirmed its power to
dismiss a claim owing to unreasonable delay in its prosecution.
[5] The applicant denied having sat on her rights and doing nothing f rom 1
February 2023 when she filed her review application. It is common cause that
after the delivery of the applicant’s review application on 1 February 2023 the
1 (2010) 31 ILJ 1337 (LC) at para 10.
2 (2007) 28 ILJ 2073 (LC).
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CCMA was required to deliver to the registrar of the Labour Court (the
registrar) the record of the arbitration proceedings within 10 days in term of
the old labour Court Rule 7A(2)(b) which was applicable at the time. The
CCMA failed. The CCMA instead delivered an incomplete record which the
registrar informed the applicant of its availability on 16 March 2023. The
applicant, as early as 19 June 2023, took active steps to purse her review
application by filing a notice of filing the incomplete record, a notice of the
CCMA’s non-compliance with its obligation and a notice of intention to apply
for condonation of the anticipated late filing of the record and supplementary
affidavit. On 30 November 2023 she sought a directive from the office of the
Judge President on how to further conduct her review application. The CCMA
did not react to the notice to deliver the record the applicant served on it on 20
July 2025. On 22 August 2025 the applicant sent the CCMA a further notice of
its failure to deliver a full record to the registrar. The CCMA responded to the
second notice by inviting the parties to a meeting to reconstruct the missing
portions of the record o n 26 September 2025. Before the reconstruction
meeting set the applicant had taken active steps to pursue her review
application. As the delay in filing the record was due to the CCMA’s failure to
file a full record and to respond promptly to the applicant’s reminders for the
delivery of the record the applicant cannot be justifiably accused of sitting on
her rights between her filing of the review application and the reconstruction
meeting.
[6] It is common cause that the representative of the third respondent handed the
applicant the missing parts of the record at the reconstruction meeting. The
reconstruction meeting was chaired by the commissioner. The applicant
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submitted that the parties were informed that the reconstr uction record would
be filed at the Labour Court but she never received a notice from the registrar
informing her that the record had been filed. The applicant submitted that she
should not be faulted for waiting for the registrar to inform her of the
availability of the record.
[7] The application before me was filed on 2 October 2025 on the fourth court day
from 26 September 2025 the date on which the reconstruction meeting was
held and the applicant received the missing portions of the record form the
third respondent. The period the applicant waited for the registrar to inform
her that the CCMA had filed the reconstructed record was reasonable. In
terms of the Rule 37(9) it is the registrar who must notify the parties that the
record has been received and that it may be uplifted by the applicant. Rule
37(2) (b) and (13) of the Labour Court Rules refer to delivery of ‘ a complete
record’ when referring to the record the CCMA is required to deliver to the
registrar for purposes of review applications.
[8] I have carefully considered the submissions on behalf of both parties including
the authorities they relied on. I agree that the third respondent had the right to
bring this application. I, however, am not satisfied that it made out a case for
the relief it sought. The applicant was failed by the CCMA which did not
perform its duty in terms of rule 37 to deliver to the registrar a complete
arbitration record timeous ly and ignoring the applicant’s remi nders. The
CCMA’s conduct cannot be imputed on the applicant. The efforts the applicant
made to obtain a full record of the arbitration proceedings under review refute
the third respondent’s contention that she was indolent or that the delay in
prosecuting her review application was unreasonable. The circumstances
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surrounding the delay do not warrant denying the applicant her constitutional
right to be heard. The application to dismiss her review application can, in the
circumstances, not succeed.
[9] In bringing this application the third respondent was asserting its right to have
the review application completed within reasonable time. The applicant did not
act unreasonably in opposing it in an attempt to protect her right to have her
review application heard. In the circumstances fairness requires that a costs
order should not be made.
[10] In the premises, the following order is made:
1. The application to dismiss the review application is dismissed.
2. There is no order as to costs.
MZN Lallie
Judge of the Labour Court of South Africa
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Appearances
For the Applicant: Advocate Y.S Mfeya
For the Respondent: Mr D. Cithi of Tabacks Attorneys Inc