THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 1212/2019
In the matter between:
NOMALUNGELO G. WOLF Applicant
and
STATE INFORMATION TECHNOLOGY AGENCY First Respondent
(SOC) LTD
WILLEM KOEKEMOER N.O Second Respondent
THE COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Third Respondent
Heard: 13 March 2025
Delivered: 13 March 2025
Reasons: 07 September 2026
REASONS FOR ORDER
MAHOMED, AJ
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] This matter came before the Cour t on 13 March 2025, being an opposed
application for the re- enrolment of a review application brought by the
applicant, N. Wolf (the applicant), against the first respondent, State
Information Technology Agency SOC Ltd (SITA), in terms of section 145 of
the Labour Relations Act 1 (the LRA). The review application had earlier been
struck from the roll, and its re- enrolment made subject to certain conditions,
by order of Orton AJ dated 17 January 2024.
[2] At the hearing, the following order was granted:
‘1. The application for re -enrolment is dismissed, with no order as to
costs.
2. The respondent's opposition to the application for re- enrolment is
likewise not awarded any costs.
3. Prior to the respondent's attorneys and counsel being entitled to levy
a fee for their appearance at the hearing, they are directed to show
cause to the Taxing Master, when preparing their bill of costs, why
they are entitled to charge a fee for the work done in respect of the
hearing.’
Brief Background of Facts and Procedural History
[3] The applicant was employed by SITA. She was dismissed following a
disciplinary enquiry. Dissatisfied with her dismissal and following an
unsuccessful arbitration before the Commission for Conciliation, Mediation
and Arbitration (CCMA) the commissioner having issued an award on 3
February 2019 upholding her dismissal the applicant launched an application
to review and set aside that award, raising, among other grounds, the
inconsistency and severity of the sanction of dismissal.
1Act 66 of 1995,as amended.
3
[4] The review has had an unusually protracted procedural history. At the
inception of the matter, a case management directive was issued regulating
the indexing and pagination of the record. It appears that only some of the
bundles now before this Court were before the Court at that stage.
[5] The matter first came for case management before Van Niekerk J on 11
March 2022. Condonation was granted on that occasion for the late filing of
the review application itself. The applicant was further directed, within 21 days
of that order, to fil e the missing portions of the record of the arbitration
proceedings being the record of the hearing days of 1 March 2018 and 8 June
2018 by no later than 4 April 2022.
[6] It is common cause that this was not done. It is further common cause, as
emerged for the first time during argument at this hearing, that no arbitration
hearing in fact took place on 1 March 2018 a date which nonetheless
features, apparently mistakenly, in the applicant's founding and other
affidavits. What was in fact filed, on 27 October 2022, was the transcribed
record (three volumes) of the hearing of 8 June 2018 itself some seven
months out of time, and unaccompanied by any application for condonation.
[7] I pause to note a further, unexplained discrepancy: the applicant's re-
enrolment application avers, at paragraph 9, that the missing record of 1
March 2018 was served on the respondent on 20 September 2022 a date
which cannot be reconciled either with the fact that no such hearing exists, or
with the applicant's own filing sheet, which reflects service only on 27 October
2022.
[8] The review application again fell to be case managed, this time by Orton AJ,
whose order is dated 17 January 2024. Orton AJ found that the papers were
not in order and struck the review application from the roll, directing the
applicant to bring an application for re- enrolment within 15 days of the date of
that order that is, on or about 4 or 5 February 2024.
that order that is, on or about 4 or 5 February 2024.
[9] It is common cause that the application for re- enrolment was only served and
filed on 12 February 2024, some seven days later. No application for
4
condonation for this further delay was included in the founding papers. A
condonation application was raised for the first time in reply a course which,
on well-established authority, is impermissible; an applicant must make out its
case, including any case for condonation, in its founding affidavit.
[10] For completeness, and because it formed part of the argument before me, I
record that the bundle now before the Court comprises ten lever arch files,
including two files descr ibed as “Index 1” and “Index 2”, and a further seven
files of transcribed arbitration record correlating to hearing dates in August
2018 and January 2019, together with two further files duplicating certain of
those dates. I have, in preparing this matter for hearing on the opposed
motion roll, gone through this material well in excess of a thousand pages in
its entirety. Much of it has limited bearing on the re- enrolment application, and
does not obviously assist the review.
Re-enrolment
[11] The question for determination was whether the applicant had shown actual,
effective and substantial compliance with the orders of Van Niekerk J and
Orton AJ, alternatively whether condonation ought to be granted for any non-
compliance.
[12] As to compliance with Van Niekerk A's order: no record of a hearing on 1
March 2018 exists, and none could therefore have been filed in compliance
with that order; the applicant's own papers are simply incorrect on this score.
The record of the hearing of 8 June 2018 was filed, but only in O ctober 2022,
some seven months late, and without any application for condonation, then or
since the supplementary affidavit filed in September 2022 dealing only with
the delay in obtaining that portion of the record and saying nothing of the 1
March 2018 date.
[13] As to compliance with Orton AJ's order: the founding affidavit in the re-
enrolment application contains no application for condonation for its own late
filing. Even taking into account the belated attempt to explain the delay in
filing. Even taking into account the belated attempt to explain the delay in
reply, that explanation cannot cure the fundamental defect that a case —
5
including a case for condonation must be made out in the founding papers,
not introduced for the first time once the applicant has seen the respondent's
answer.
[14] Even if that were overlooked, I am not satisfied that the applicant
demonstrated effective compliance with either order. Effective compliance
requires proof annexed to the founding papers of what was in fact done. The
applicant annexed only an email referring to three unspecified attachments,
without identifying what those attachments were, still less annexing them, or
even photographs of them, as proof of service. That falls well short of what is
required.
[15] I have, in any event, had regard to the prospects of success on review,
notwithstanding that counsel for the applicant did not, in argument, specifically
address this requirement. It is nonetheless a matter this Court must consider
on an application of this kind, and one which was in any event canvassed in
the papers. I record, too, that the respondent did not assist the Court in this
task: its answering papers were shoddy, untidy and, in material respects,
unclear, and failed to engage with points that plainly required an answer. I
have had regard to the papers, to the policies relied upon by the applicant,
and to what was before the commissioner at the time the award was made on
3 February 2019, insofar as this bears on the applicant's principal contention
that the sanction of dismissal was inconsistent and disproportionately severe.
Having considered those prospects, they do not, in my view, outweigh the
applicant's repeated and largely unexplained non- compliance with the rules,
with the authorities on condonation, and with the orders of both Van Niekerk J
and Orton AJ.
[16] For these reasons, the application for re-enrolment falls to be dismissed.
Costs
[17] As to the costs of the application for re- enrolment itself, I have had regard to
the applicant's personal circumstances she has, on the uncontested evidence,
the applicant's personal circumstances she has, on the uncontested evidence,
been unemployed since her dismissal, has experienced significant ill -health,
6
and has faced considerable personal hardship in pursuing this matte and do
not consider it in the interests of justice or fairness to burden her further with a
costs order. No order is made as to those costs.
[18] As to the costs of the respondent's opposition to the re- enrolment application,
I likewise decline to make any order in the respondent's favour. The
respondent was, on its own representative's submission, not prepared for the
hearing particularly in respect of the review , had the re- enrolment application
succeeded and its own papers in opposing re- enrolment were, as I have
noted, shoddy, untidy and unclear. In these circumstances it would not be
appropriate to award it costs merely because the application before me has
failed.
[19] Finally, and because of the manner in which the matter was prepared and
presented on behalf of the respondent, I direct that, prior to the respondent's
attorneys and counsel being entitled to levy any fee for their appearance at
this hearing, they must show cause to the Taxing Master, when their bill of
costs comes to be prepared, why they are entitled to charge a fee for the work
done in respect of this hearing.
[20] It is for these reasons that the order set out above was granted.
N. Mahomed
Acting Judge of the Labour Court of South Africa
7
Appearances:
For the Applicant: Adv TZ Muza
Instructed by: Mabapa Attorneys
For the Respondent: Adv T Mabuza
Instructed by: Mampuele Attorneys