THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JS 658/23
In the matter between:
GULLAND BELEGGINGS (PTY) LTD Applicant
and
SELINA KESENOGILE LESOLLE & OTHERS Respondents
Heard: 26 June 2026
Delivered: 06 August 2026
JUDGMENT
LEKWAPE, AJ
Introduction
[1] This matter concerns an application for rescission of a default judgment
brought by the Applicant. The Respondents in the rescission application,
Selina Kesenogile Lesolle and o thers, seek the dismissal of that application
on the basis that it has not been prosecuted with diligence and that there has
been non-compliance with a Directive issued by the Registrar of this Court.
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
06 August 2026
______________ ______________
Signature Date
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The Directive and Procedural Compliance
[2] On 5 February 2025, the Registrar issued a Directive under the heading
dealing with heads of argument. In terms of the Directive t he Applicant was
required to inform the Registrar in writing whether it intended to proceed with
the matter, to paginate and index the court file so that the matter could be
placed on the roll, and to notify the Registrar once those steps had been
completed.
[3] The Directive was transmitted by email to the Applicant’s email address and
to the Respondents’ attorneys of record. The Applicant’s correspondent
attorneys, Hannelie Swart Attorneys, were also among the recipients. It
follows that the Directive was not merely issued , it was brought to the
attention of the legal representatives acting for the Applicant.
[4] On 5 March 2025, Hannelie Swart Attorneys forwarded the Registrar’s email
of 5 February 2025 to the Applicant’s attorneys of record under the subject
line “Directives JS658/23”. This correspondence suggest s that the Directive
came to the attention of the Applicant’s attorneys . There is therefore no
sustainable basis to suggest that the Applicant , or those acting on its behalf,
was unaware of the procedural steps required.
[5] On 29 April 2025, the Respondents served the Applicant with an application to
dismiss the rescission application.
[6] On 26 May 2025 the Applicant served the Respondents with a notice of
intention to oppose the application. That step is significant in that it shows that
the Applicant was able to take procedural steps when required to answer the
dismissal application, yet no comparable steps were taken to comply with the
Registrar’s Directive or to advance the rescission application.
[7] Despite receipt of the Directive, and despite later correspondence confirming
that it had been sent to the Applicant’s attorneys of record, no meaningful
steps were taken to meet the Registrar’s requirements. The rescission
steps were taken to meet the Registrar’s requirements. The rescission
application remained dormant. The Applicant did not confirm whether it
intended to proceed, nor did it complete the procedural steps needed to place
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the matter properly before the Court. This omission is material. The Applicant
bore the responsibility to prosecute its own rescission application diligently
and to comply with directions issued through the Registrar.
The Relationship Between the Instructing and Correspondent Attorneys
[8] The Applicant seeks to excuse its non- compliance by contending that the
correspondent attorney forwarded the Registrar’s Directive to an incorrect
email address for the instructing attorney. That explanation is not supported
by the objective evidence and is, in the circumstances, inadequate.
[9] No documentary proof has been placed before the Court identifying the
alleged incorrect email address or showing that the Directive failed to reach
the instructing attorney. The Applicant has produced no email trail, delivery
failure notification, server rejection report, confirmatory affidavit from the
correspondent attorney, or any other objective evidence to substantiate the
alleged miscommunication. Without such evidence, the explanation remains a
bare assertion and does not discharge the Applicant’s obligation to provide a
full, reasonable and acceptable explanation for its failure to comply with the
Registrar’s Directive.
[10] The undisputed evidence is that the Registrar’s Directive was received by the
correspondent attorney and then forwarded to the Applicant’s instructing
attorney. In our law, the instructing attorney remains the dominus litis and
bears primary responsibility for the conduct and prosecution of the litigation.
The correspondent attorney acts as the agent of the instructing attorney for
procedural steps in the matter. Once the Directive had passed through the
Applicant’s chosen legal representatives, the duty to ensure compliance and
to advance the rescission application rested squarely on the instructing
attorney.
[11] It is settled law that a litigant cannot, without more, avoid the consequences of
the negligence, remissness or lack of diligence of his or her legal
the negligence, remissness or lack of diligence of his or her legal
representative. In Saloojee and Another NNO v Minister of Community
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Development1, the Appellate Division made clear that there is a limit to the
extent to which a litigant may be absolved from the consequences of an
attorney’s failure to discharge professional duties. That principle applies with
particular force here, where the Directive was transmitted within the
Applicant’s own legal team and no objective evidence has been placed before
the Court to show that the alleged miscommunication prevented compliance.
[12] The Applicant failed to provide a satisfactory explanation for the prolonged
inactivity after the Directive was issued. It does not explain why no response
was sent to the correspondent attorney, why no enquiries were made about
the status of the rescission application, or why the procedural steps stipulated
by the Court were not taken.
[13] The silence of the instructing attorney, coupled with the absence of objective
evidence supporting the alleged incorrect email address, justifies the
inference that the Directive was either ignored or not given the attention
reasonably expected of legal practitioners litigating before this Court. This is
not a mere administrative omission. It goes directly to whether the Applicant
has provided a full, reasonable and acceptable explanation for its failure to
prosecute the rescission application.
[14] Consequently, the Applicant cannot evade the consequences of non-
compliance simply by relying on unsubstantiated allegations about
communication failures within its own legal team. To allow that would weaken
the authority of the Court’s case- management directives and undermine the
orderly and expeditious determination of disputes. Those directives are not
matters of convenience, they are binding procedural mechanisms, and a party
who invokes the Court’s processes must take responsibility for ensuring
compliance with them.
The Settlement Agreement
[15] The dispute between the parties lies on the legal effect of the settlement
[15] The dispute between the parties lies on the legal effect of the settlement
agreement concluded between them. It is common cause that , on 31 August
1 1965 (2) SA 135 (A).
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2023, the Applicant and the Respondents signed a settlement agreement
described as being in full and final settlement following the Respondents’
retrenchment. In terms of that agreement, the Applicant paid the Respondents
their final salary, accrued pro rata leave pay and severance pay.
[16] It is worth noting that the settlement agreement contains no waiver clause
precluding the Respondents from referring any dispute against the Applicant
to the Commission for Conciliation, Mediation and Arbitration ( CCMA) or to
any court of law.
[17] On 1 January 2024, the Respondents launched an application for default
judgment in this Court pursuant to their unfair dismissal referral, in which they
sought, among other relief, retrospective reinstatement.
[18] On 14 May 2024, Gandidze AJ granted the default judgment in favour of the
Respondents, which included an order for retrospective reinstatement.
[19] According to the Applicant, the agreement brought all disputes between the
parties to an end and therefore bars the Respondents from pursuing the unfair
dismissal claim.
[20] The Respondents , on the other hand, contend that the agreement did not
extinguish their right to pursue the unfair dismissal dispute , as the payments
made to them were statutory payments to which they were in any event
entitled. The issue therefore turns on the proper interpretation of the
agreement, having regard to its wording, the circumstances in which it was
concluded, and whether it was intended to constitute a full and final settlement
of all disputes between the parties.
[21] That contention must be assessed against the nature of the payments
recorded in the agreement. Severance pay, notice pay and accrued leave pay
are ordinarily consequences of termination, rather than separate
consideration for the abandonment of an unfair dismissal claim. In the
absence of clear language to that effect, the payment of those amounts does
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not, on its own, amount to a waiver of the Respondents’ rights under the
Labour Relations Act2 (LRA).
[22] In a dismissal for operational requirements , payment of amounts due under
the Basic Conditions of Employment Act3 (BCEA), including severance, notice
and accrued leave pay, does not of itself establish that the dismissal was
substantively and procedurally fair. Those payments satisfy statutory financial
obligations, they do not relieve the employer of the duty to justify the fairness
of the retrenchment.
[23] The settlement agreement between the parties contains no express waiver,
abandonment or full -and-final settlement clause in relation to the unfair
dismissal dispute. The payments recorded in the agreement appear to be
statutory entitlements to which the employee would in any event have been
entitled to on termination. In those circumstances, a document recording
payment or receipt of legal dues cannot, absent clear and unequivocal
language, be construed as a compromise of the employee’s right to challenge
the fairness of the dismissal. A waiver of statutory labour rights is not lightly
inferred, therefore it must be clear, informed and unequivocal.
[24] A settlement agreement constitutes a compromise, or transactio , in South
African law. Where parties conclude a valid compromise, the disputed rights
and obligations between them are generally settled and replaced by the rights
and obligations created by the compromise itself. The legal effect of such an
agreement depends on its proper interpretation, having regard to the
language used, the context in which it was concluded, and the intention of the
parties as objectively manifested in the agreement.
[25] In Road Accident Fund v Mothupi
4, the Supreme Court of Appeal reaffirmed
that waiver is not lightly inferred and that the party alleging waiver bears the
onus of proving it. The conduct relied upon must be clear and unequivocal
and objectively demonstrate an intention to abandon the right said to have
and objectively demonstrate an intention to abandon the right said to have
2 Act 66 of 1995.
3 Act 75 of 1997.
4 2000 (4) SA 38 (SCA) paras 15–16
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been waived. In the absence of such conduct, a court will not readily conclude
that a party has relinquished statutory or contractual rights.
[26] The mere existence of a settlement agreement therefore does not mean that
every legal right a party may have is waived. The Court must still be satisfied
that the language used by the parties clearly shows an intention to relinquish
the right sought to be enforced.
[27] A similar approach was adopted in Rankoane v Shoprite Checkers (Pty) Ltd.
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In that matter, the employer contended that the employee had accepted an
arrangement constituting a full and final settlement and was therefore
precluded from referring a dispute to the CCMA. The Court rejected that
contention and held that the arrangement did not constitute a full and final
settlement of any dispute between the parties, nor did it contain any express
waiver of the employee’s statutory rights. The Court emphasised that there
was no language indicating that the employee had relinquished the right to
challenge the fairness of the employer’s conduct and that such a waiver could
not be inferred from the agreement.
[28] As is in the present matter the agreement records no express waiver,
abandonment or compromise of the Respondents’ unfair dismissal claim. The
payments reflected therein comprise severance pay, notice pay and accrued
leave pay, being amounts ordinarily payable upon termination of employment.
In the absence of clear and unequivocal language demonstrating an intention
to relinquish the right to challenge the fairness of the dismissal, the agreement
cannot be construed as barring the Respondents from pursuing the unfair
dismissal dispute.
Failure to Prosecute
[29] The decisive issue is the Applicant’s failure to prosecute the rescission
application with the required diligence. The non- compliance in this matter is
more than a procedural irregularity. The Applicant failed to comply with the
more than a procedural irregularity. The Applicant failed to comply with the
Registrar’s Directive, failed to file the record necessary for the determination
5 Rankoane v Shoprite Checkers (Pty) Ltd (JS921/13) [2014] ZALCJHB 312 (15 August 2014) at para
11.
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of the application, failed properly to prepare the court file, and ultimately failed
to place the matter in a state of readiness for adjudication.
[30] The Labour Court is enjoined to ensure that labour disputes are resolved
expeditiously and that its processes are not undermined by dilatory conduct.
In Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
6, the Constitutional Court emphasised that the LRA
was enacted to facilitate the expeditious resolution of labour disputes and that
any delay in their resolution undermines one of the primary objects of the
LRA.
[31] The same principle is reflected in Rankoane, where the Court emphasised
that a party who initiates proceedings must take the steps necessary to bring
the matter to finality . Unexplained delay or inactivity may justify dismissal
where it undermines the expeditious resolution of labour disputes. That
authority supports the view that the Applicant was required to comply with the
Registrar’s Directive and to advance its rescission application with reasonable
diligence.
[32] A party who initiates proceedings cannot then remain passive while the matter
lies dormant. It must take the procedural steps necessary to move the matter
towards finality within a reasonable time. The Labour Court has consistently
recognised that a failure to prosecute proceedings diligently, particularly
where it causes undue delay, may justify dismissal. That approach is
consistent with the statutory imperative that labour disputes be resolved
expeditiously and without unnecessary delay.
[33] The Applicant’s conduct after the Registrar’s Directive was issued does not
show a genuine intention to prosecute the rescission application. Although
given an opportunity to regularise the matter and place it in a state of
readiness for adjudication, the Applicant did not comply with the Directive, file
the required record, or take the procedural steps needed to advance the
6 (2016) 37 ILJ 313 (CC) at para 1.
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application. No satisfactory explanation has been given for this continued
inaction.
[34] The Applicant’s non-compliance cannot be treated as a mere oversight. It
amounts to a sustained failure to prosecute the application and is inconsistent
with the obligations of a litigant who invokes the jurisdiction of this Court. The
delay has also prejudiced the Respondents’ entitlement to finality. In these
circumstances, the interests of justice do not favour allowing the application to
remain pending when the Applicant has made no meaningful effort to move it
towards adjudication.
[35] Having regard to the totality of the circumstances, the Court is satisfied that
the Respondents have established a proper basis for the dismissal of the
rescission application for want of prosecution. The Applicant did not prosecute
the application with the diligence and expedition expected of a litigant who
invokes this Court’s jurisdiction. Its non- compliance with the Registrar’s
Directive has not been adequately explained or remedied, despite the
opportunity afforded to regularise the matter. To allow the application to
remain pending would be inconsistent with the effective administration of
justice, the principle of finality in litigation, and the statutory imperative that
labour disputes be resolved expeditiously. The rescission application must
therefore be dismissed for want of prosecution.
Conclusion
[36] In all the circumstances, there is no justification for permitting the rescission
application to remain pending indefinitely. The Applicant’s continued failure to
take the necessary procedural steps warrants the dismissal of the application,
and the interests of justice require that the Applicant bear the consequences
of its omission.
[37] The objective evidence indicates that, although the Registrar’s Directive may
initially have been transmitted to an incorrect email address for the Applicant’s
legal representatives, it was subsequently forwarded by the correspondent
legal representatives, it was subsequently forwarded by the correspondent
attorneys to the attorneys of record. There is no evidence before the Court
that the correspondent attorneys also used an incorrect email address, or that
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the Directive did not reach the Applicant’s attorneys of record. In these
circumstances, it cannot fairly be accepted that the Applicant, or those acting
on its behalf, was unaware of the procedural steps required by the Court. The
Applicant’s failure to comply with the Directive is therefore not satisfactorily
explained and remains an inadequately accounted-for failure to take the steps
necessary to prosecute the rescission application.
[38] As to costs, the Respondents were compelled to incur the costs of this
application because of the Applicant’s failure to prosecute the rescission
application diligently and to comply with the Registrar’s Directive. In the
circumstances, considerations of law and fairness support an order that the
Applicant pay the costs occasioned by that failure.
[39] In the result, the following order is made:
Order
1. The Respondents’ application to dismiss the Applicant’s rescission
application for want of prosecution is granted.
2. The Applicant ’s application for rescission under case number JS
658/23 is dismissed.
3. The Applicant is ordered to pay the costs of the Respondents’ this
application.
_______________________
M. J. Lekwape
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Advocate Wijnibeek
Instructed by : A Peens Attorneys
For the Respondents : Mr Kgalegi
Instructed by : National Enterprise Workers Union