Pelchem (SOC) Ltd v Letsoalo and Others

Citation: [2026] ZALCJHB 55

Presiding Judge: Holmes AJ

Court: Labour Court of South Africa, Johannesburg

Nature of the Application

[1] The application concerned the reinstatement of a review application deemed withdrawn in terms of clause 11.2.3 of the Labour Court Practice Manual, owing to the applicant's failure to file the record within sixty days after being notified by the Registrar.

Legal Principles: Practice Manual and Reinstatement Test

[2]–[5] The Practice Manual supplemented the Rules by prescribing specific time frames. Clause 11.2.3 provided that failure to file a record within sixty days resulted in the application being deemed withdrawn, unless consent for extension was obtained or an application made to the Judge President.

[6] The test for reinstatement is akin to condonation, applying the Melane factors. The Court cited Overberg District Municipality v Independent Municipal & Allied Trade Union on behalf of Spangenberg & others:

"[31] ... If effect is to be given to the deemed status of the review application, it seems the correct approach is that the application must be reinstated and that a condonation application for the non-compliance alone cannot be brought because an interlocutory application relating to a non-existent review application makes no sense. [32] However, even though this approach seems to be formally correct, when it comes to deciding whether or not to reinstate the review application that decision will always be inextricably linked with whether or not the non-compliance with the manual should be condoned. ... [39] On the approach adopted, as one pre-condition for reinstatement, the court needs to be satisfied that the non-compliance with the manual which led to the application being deemed inactive, should be condoned."

[8]–[10] The applicant was required to furnish explanations for three periods: (i) the initial sixty-day period; (ii) the period between non-compliance and filing of reinstatement; and (iii) provisional steps taken to ensure expeditious finalisation.

Factual Matrix and Analysis

[12]–[24] The record should have been filed by 26 April 2023. Pelchem contended that persistent financial hurdles prevented it from paying the security bond under section 145(7) of the LRA and affording transcription costs. Despite receiving funds in July 2023, no steps were taken to advance the review or institute reinstatement until September 2023.

[33]–[38] Pelchem's explanation was found inadequate:

"[33] Pelchem sought to justify its non-compliance with the Practice Manual on the basis that, during the relevant periods, its primary focus was directed at securing the funds required to furnish security in terms of section 145(7) of the LRA. [34] When Pelchem elected to institute review proceedings, as dominus litis, it bore responsibility for ensuring compliance with not only section 145(7) of the LRA, but all the procedural time frames governing the review proceedings it had initiated, including the time periods prescribed by Clause 11.2.2 of the Practice Manual. [35] Clause 11.2.3 of the Practice Manual envisages that litigants may experience difficulties with complying with the 60-day period. For this reason, it allows for the respondent to consent to an extension of the time, failing which the applicant may approach the Judge President in chambers for an extension of the time. Properly construed, the Practice Manual does not oblige an applicant to seek an extension of time, however, in the absence of an application for an extension, a review application is deemed withdrawn. [36] Notwithstanding the difficulties it claims to have encountered, Pelchem did not invoke clause 11.2.3 of the Practice Manual by seeking an extension of time. It concedes that no attempt was made to obtain an extension, either from Ms Letsoalo's attorneys or, failing that, from this Court. [37] Pelchem's failure to do so is unfortunate. The explanation advanced by the applicant for the delay in furnishing security is not without merit. It is well known that state-owned entities are often required to navigate extensive administrative and regulatory processes before securing approval for the release of large sums of money, including for purposes of furnishing security under section 145(7) of the LRA. Had these considerations been properly placed before the Judge President, it is very probable that an extension of time would have been granted. [38] I accordingly agree with Ms Letsoale that Pelchem's decision to prioritise the securing of funds for purposes of compliance with section 145(7), to the exclusion of its obligations under clause 11.2.3 of the Practice Manual, was misplaced and does not assist it in the present application."

[40]–[43] Inconsistencies undermined Pelchem's version:

"[40] It is also necessary, at this stage, to address the following inconsistencies in Pelchem's version: [40.1] On 18 May 2023, Ms Letsoale's attorneys addressed correspondence to Pelchem's attorneys advising that the 60-day period prescribed by the Practice Manual had expired on 26 April 2023 and that, consequently, the review was deemed withdrawn. [40.2] Pelchem received USD 56 264.26 for container rentals on 7 July 2023 and, shortly thereafter, on 10 July 2023, informed Ms Letsoale's attorneys that security in the amount of R1 155 983.50 had been furnished... Pelchem advised Ms Letsoale's attorneys that it was 'proceeding with requesting the transcribed records' in order to finalise the review application. This is significant, as any contention that funds were previously unavailable to procure the transcription of the record and to advance the review would, on Pelchem's own version, have fallen away by that stage. [40.3] On 11 July 2023, Ms Letsoale's attorneys again addressed correspondence to Pelchem's attorneys advising that the 60-day period had expired on 26 April 2023 and that the review was accordingly deemed withdrawn. This notwithstanding, no steps were taken by Pelchem either to advance the review application or to institute an application for reinstatement. [40.4] On 11 August 2023, Ms Letsoale's attorneys addressed correspondence to Pelchem's attorneys requesting confirmation as to whether the audio recordings of the arbitration proceedings had been provided to transcribers and, if so, to whom. In response, Pelchem's attorneys indicated in correspondence dated 11 August 2023 that they had 'instructed Digital Audio Recording Transcriptions on 1 February 2023'. This statement, however, is contradicted by the version later advanced in Pelchem's replying affidavit, where it is acknowledged that the attorneys had merely obtained a quotation from digital audio recording transcriptions and, due to an alleged lack of funds, had not in fact instructed them to proceed with the transcription. [40.5] Pelchem's heads of argument attempt to justify the failure to file the record on the basis that the 'Applicant realised that the record of proceedings was incomplete and accordingly made several attempts to the CCMA to procure same'. Reference is made to annexure AL8, page 67 of the founding affidavit in the reinstatement application. There is no AL8 in the founding papers, and ALR8 of the answering papers does not support this averment. Moreover, no reference is made in either the founding or answering papers to any attempts to contact the CCMA. [41] These inconsistencies are material and weigh against Pelchem. The contradictory versions advanced in correspondence and in the affidavits undermine the reliability of its explanation and cast doubt on its bona fides. A litigant seeking an indulgence must place a full, frank and consistent account before the Court. Where an explanation shifts over time and is contradicted by contemporaneous correspondence, an adverse inference may properly be drawn. In these circumstances, the inconsistencies materially weaken Pelchem's attempt to establish good cause and render its explanation for the delay unpersuasive. [42] To compound matters, at no stage, whether in correspondence or in its founding papers, does Pelchem contend that it lacked sufficient funds to procure the transcription of the record. The explanation advanced in Pelchem's founding papers for its non-compliance with the Practice Manual is that it was 'more focused on seeking funds to satisfy the security bond as provided for in section 145(7) of the LRA'. The version that Pelchem lacked the necessary funds to transcribe the record emerges only for the first time in its replying papers. [43] I accordingly find that no satisfactory explanation has been furnished for the delay."

[45]–[49] Prospects of success:

"[45] The Court is also required to consider whether an applicant has reasonable prospects of success on review, should it be able to establish the grounds upon which the review is premised when the matter is argued. This requires an applicant to set out allegations which, if established, demonstrate a reasonable prospect of success. [46] Ms Letsoale contended that Pelchem's case does not enjoy reasonable prospects of success. She further states that, had Pelchem genuinely enjoyed strong prospects of success, as it contends, it would have had little difficulty in diligently prosecuting the review. I am persuaded that this contention is well founded. [47] In the absence of a transcribed record and the full complement of affidavits filed in the review application, this Court is left only with the Commissioner's award, which appears to have been reached in a careful and considered manner, particularly having regard to the extensive body of evidence before him, including, in Ms Letsoale's bundle alone, documentation running to approximately 3 000 pages. It is apparent from the comprehensive nature of the award that the Commissioner considered and addressed all material issues placed before him. The Commissioner delivered a detailed and well-reasoned arbitration award, the findings of which are justified when viewed against the extensive evidence that was before him. [48] By contrast, Pelchem's case rests largely on vague and unsubstantiated grounds of review, unsupported by documentary evidence and unaccompanied by confirmatory affidavits. This deficiency is compounded by material inconsistencies in the correspondence and affidavits. [49] Having regard to the material before this Court, I am satisfied that the Commissioner's finding is one that a reasonable decision-maker would have reached and, accordingly, Pelcham enjoys little prospect of success in the review application."

[50]–[53] Prejudice:

"[50] As far as prejudice is concerned, Pelchem contends that they would suffer significant prejudice if the reinstatement were refused. The refusal of reinstatement would bar them from challenging the arbitration award, which found to the contrary. [51] On the other hand, Ms Letsoalo contends that no prejudice would befall Pelchem should reinstatement be refused. On the contrary, she submits, inter alia, that – [51.1] She has already endured a protracted delay in securing finality in this matter, occasioned by Pelchem's failure to prosecute the review application diligently and in good faith, as required by the principles of expeditious dispute resolution; and [51.2] Despite its acknowledged financial constraints, Pelchem has continued to incur unnecessary and avoidable legal costs arising solely from its own non-compliance. [52] It is for these main reasons Ms Letsoalo asserts that Pelchem is the author of its own misfortune, and that it would be unjust to subject her to further prejudice and delay while Pelchem continues to pursue this matter in the dilatory manner it has exhibited to date. I am inclined to agree with Ms Letsoale. [53] I therefore find that the balance of prejudice favours Ms Letsoale."

[54]–[61] Costs:

"[54] Having considered the submissions advanced, and when weighed against Ms Letsoale's detailed response, I am not persuaded that Pelchem has established good cause for the reinstatement of the review application. This is particularly so in light of the unsatisfactory explanation for the delay, which is riddled with inconsistencies, and the unconvincing prospects of success, which do not sufficiently compensate for the extent of that delay. [55] In the circumstances, the present application must fail. The review application is accordingly not reinstated, remains deemed withdrawn and is accordingly dismissed. [56] Turning to the issue of costs, this Court enjoys a wide discretion in determining an appropriate costs order, guided at all times by the principles of law and fairness. Section 162 of the LRA permits the Court to have regard to, inter alia, the conduct of the parties in the course of litigation. [57] In rendering a decision with respect to costs, it is important to acknowledge that, as alluded to above, on 18 May 2023, the Respondent's attorneys addressed correspondence to Pelchem's attorneys advising that the 60-day period prescribed by the Practice Manual had expired on 26 April 2023 and that, as a consequence, the review was deemed withdrawn. Pelchem, however furnished no explanation for its failure to comply with the Practice Manual, no steps were taken to apply for reinstatement until 5 September 2023, and no reasonable explanation for this delay was advanced in its papers for this substantial delay. [58] Such conduct is inappropriate. The Practice Manual, at the time that Pelchem filed this reinstatement application, had been in operation for nearly a decade and provided clear mechanisms to address each stage of the review process. In particular, where difficulties arise in relation to the record, it expressly provided that a party may, within the prescribed time period, seek the consent of the opposing party for an extension and, failing such consent, approach the Judge President of this Court for appropriate directions. Pelchem did neither. [59] Instead, it elected to proceed in isolation, despite the availability of both the opposing party and the Judge President as mechanisms to resolve the difficulties encountered. In the circumstances, Pelchem is plainly the author of its own misfortune. This conclusion is reinforced by the fact that it has been legally represented throughout the proceedings. [60] In the circumstances, it would be unfair to burden Ms Letsoale with the costs of an application that could and should have been avoided had due diligence been exercised. The dictates of fairness therefore, justify an award of costs in this application. [61] For the avoidance of doubt, the costs order granted herein is confined to this reinstatement application. As regards the costs associated with the review application, the provisions of Rule 43(1)(b) of the Labour Court Rules find application. Accordingly, unless Pelchem tenders the wasted costs, Ms Letsoale may, on notice, apply for such costs."

Order

"1. The application to reinstate the review application is dismissed. 2. The Applicant must pay the costs of this reinstatement application."