the labour court of South Africa, johannesburg

Not Reportable
Case No: JS 824/2017

In the matter between:

DIMAKATJO FLORAH MASHABELA 	First Applicant

KGAOGELO TSEPUDIKGOLO MOTJOADI	Second Applicant

ZABILON KAKI THAMAGA	Third Applicant

LOUIS VUSIMUZI MAVUNDLA	Forth Applicant

MPHO HENDRICK MOKGETHOA	Fifth Applicant

MAPHETJA CHARLES MHLOKO	Sixth Applicant

RAMATLHATSI RAYMOND POLE	Seventh Applicant
	 
and

KLT AUTOMOTIVE & TUBULAR PRODUCTS
SA (PTY) LTD 	First Respondent

DISPUTE RESOLUTION CENTRE OF THE 
NORTHERN REGION 	Second Respondent

COMMISSIONER JOHAN D STAPELBERG N.O.	Third Respondent 

Heard: 30 May 2023 
Delivered: 31 May 2023
(This judgment was handed down electronically by circulation to the parties’ legal representatives, by email, publication on the Labour Court’s website and released to SAFLI. The date on which the judgment is delivered is deemed to be 31 May 2023.)
___________________________________________________________________
JUDGMENT
VAN NIEKERK, J

[1]	The applicants seek to reinstate an application to review and set aside a ruling issued by the third respondent (the arbitrator) on 20 July 2017. In his ruling, the arbitrator held that the nature of the dispute before him required that the matter be referred to this court for adjudication, and that the bargaining council thus had no jurisdiction to consider the application for condonation. The review application was archived after a failure by the applicants to prosecute the review application within the time limits established by the practice manual. 

[2]	The review application was filed on 17 November 2017, outside of the six-week period established by section 145 of the LRA. Nothing transpired until May 2019, when the applicants’ erstwhile attorney was advised by the respondent’s erstwhile attorney that the application had been filed some five months’ late. In a supplementary affidavit, filed in December 2020, the applicants sought condonation for the late filing of the review. The did so by stating that the reason for the late filing ‘was because the applicants previous attorney Phooko Vincent Ramaboya took his time in preparing the Review Application. The previous attorney was also fined by the Law Society for his bad behaviour in this matter.’

[3]	In Samuels v Old Mutual Bank (2017) 38 ILJ 1790 (LAC), the LAC stated:

(15) The Practice Manual is not intended to change or amend the existing Rules of the Labour Court but to enforce and give effect to the rules, the Labour Relations Act as well as various decisions of the courts on the matters addressed in the practice manual and the rules. Its provisions therefore are binding. The Labour Court’s discretion in interpreting and applying the provisions of the Practice Manual remains intact, depending on the facts and circumstances of a particular matter before the court.’

[4]	In Macsteel Trading Wadeville v Van der Merwe N.O and others (2019) 40 ILJ 798 (LAC), the LAC noted that the underlying objective of the Practice Manual is the promotion of the statutory imperative of expeditious dispute resolution (referring to the decision of the Constitutional Court in Toyota Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others [2016] 3 BLLR 217 (CC)). At paragraph 23 of the judgment, the LAC noted ‘It [the practice manual] is binding on the parties and the Labour Court’.

[5]	It is also clear from Samuels and Macsteel that when a review application lapses, it is deemed withdrawn or dismissed in terms of clauses 11.2.3, 11.2.7 or 16.3 respectively, it remains so unless and until the applicant succeeds in an application to reinstate or retrieve the application, thus restoring its status as a pending application.
 
 [6]	An application for reinstatement of a review application deemed to have been withdrawn is, in essence, an application for condonation. It is incumbent on the applicant to show good cause why, in this case, the record of the proceedings under review was not filed within the prescribed time limit. Condonation is not there merely for the asking, nor are applications for condonation a mere formality (see NUMSA v Hillside Aluminium [2005] 6 BLLR 601 (LC); Derrick Grootboom v National Prosecuting Authority & another [2014] 1 BLLR (CC)). A party seeking condonation must make out a case for the indulgence sought and bears the onus to satisfy the court that condonation should be granted. 

[7]	The delay in complying with the relevant provisions of the Practice Manual is excessive. After filing the review application, out of time as it was, the applicants did nothing to prosecute the application, despite cautionary reminders from the respondent’s attorney, until 14 May 2020, when the applicants’ current attorney came on record, and then only in the form of the current application, filed more than four months later. The explanation for the delay is poor, and hinges on the action (or lack of it) by their erstwhile attorney. This is not an explanation, given the absence of any concrete evidence by the applicants as to the steps they took to follow up on instructions given to the attorney. Further, the applicants’ prospects of success are poor. The application for condonation for the late filing of the review application fails manifestly to address all of the required elements – it extends only to a statement that the previous attorney took his time in filing the application. There is no proper explanation for the delay, nor are there any averments addressing the prospects of success in the review application. The review application stands to be dismissed solely on the basis of an incomplete and inadequate application for condonation. Little purpose would be served in reinstating the review application, only to have it later dismissed for this reason. As counsel for the respondent put it, the applicants are flogging a dead horse.

[8]	For all of these reasons, the application to reinstate the review stands to be dismissed. In so far as costs are concerned, the applicants are represented courtesy of Legal Aid South Africa. It astounds me that given the shortage of resources in that institution, approval was granted to pursue the current matter. From the outset, it was a hopeless case. Nonetheless, it would not be in the interests of the law and fairness to saddle the applicants with an order for costs. 

I make the following order:

1.	The application to reinstate the review application is dismissed.

André van Niekerk
 Judge of the Labour Court of South Africa

Appearances:
For the applicant: 	J D Stroh, Stroh Attorneys
For the respondent:	Adv WP Bekker
Instructed by:	Z Smit Inc