Vusumzi v Department of Correctional Services

Citation: [2026] ZALCPE 8

Presiding Judge: Kroon AJ 

Court: Labour Court of South Africa at Gqeberha (Port Elizabeth)

Nature of the Application and Procedural History

[1]–[7] This opposed reinstatement application was set down for 19 February 2026. The Court file was in an untidy and disorganised state, with the majority of documents loose and in no logical order, and had not been indexed and paginated since leave was granted to file further pleadings on 20 November 2025. The Applicant's legal representative was furnished with the Court file to attend to indexing but left the Court building with the entire file, including the "brown cover", without the Registrar's permission or knowledge. When returned at 14h37, the file remained in an unacceptable state with loose pages and unbound documentation.

What the Rules Say: Indexing and Removal of Court Records

[12]–[14] On indexing:

"[12] At Common law, there is an overarching duty on an applicant, as dominus litus, to take all necessary steps and to ensure that the file is in order. The Rules, although not exhaustive, do, to a large extent, codify this obligation particularly when it comes to the obligation to index the Court file. In terms of the Rules, indexing must, when it comes to actions, be finalised within 10 days of the close of pleadings. Unlike Rule 37 (25) which expressly makes reference to Rule 29 and provides that, when it comes to review applications, there is a 10-day period within which the file must be indexed and an application made for a Court date, when it comes to applications generally i.e. those governed by Rule 35, there is no equivalent provision and no requirement that indexing occur before there can be a request for a Court date. The Registrar thus has a discretion when it comes to the setting down of general applications, although she would not err if she followed an approach akin to that contained in Rule 37 (25), mutatis mutandis, as this would be consistent with the scheme of the Labour Relations Act which requires practitioners who prosecute claims in the Labour Court to do so vigilantly and diligently. [13] As part of her administrative function of controlling the Roll, it is within the prerogative of the Registrar to decide when and on what conditions an application, other than a review application, may be set down, providing of course that she does not act contrary to the Rules. If the Registrar decides, in her discretion, to set down an unindexed application (and simultaneously directs that the Court file be indexed and paginated), she is trusting the relevant legal representative to comply with his or her duty to ensure that the Court file is in order. If the trust which the Registrar places in practitioners is systematically betrayed (as appears to have happened in the Gqeberha Labour Court), practitioners should not be surprised if she takes a stricter, even an uncompromising, approach to ensure that Court files are in order by the time they reach the Presiding Judge. I would add that, it was apparent from the files which were placed before the Court over the last two weeks that there are several instances where the Registrar has had to send repeated reminders to practitioners to sort out files, particularly when it comes to indexing. This is not acceptable. There is no obligation on the Registrar to effectively supervise legal practitioners to ensure compliance with the Rules. Those practitioners who practice in the Labour Court are required to familiarise themselves with the Rules. It is the practitioners and not the Registrar who are accountable to their clients and it is a serious matter where requests and directives of the Registrar are ignored with apparent impunity. [14] In short, the way for practitioners to ensure that their applications (other than review applications which have their own constraints) are set down without unnecessary delay, is for them to index and paginate such applications as soon as is practically possible after the close of pleadings. On the other hand, if the Registrar is concerned that applications are languishing indefinitely in her office and that this is adversely affecting the administration of justice, there is a remedy available to her. She may, mero motu, or it would seem, at the instance of a respondent, archive the file, providing that the requisite notice has been given."

[16]–[17] On removal of Court records:

"[16] When it comes to Court records, the Rules provide that: '7. Issue of documents and registrar's duties ... 7. The registrar must keep the court's records and must not allow them to leave the court building without the registrar's prior written authorisation.' [17] The Rule is self-evidently there for a reason. A Court file contains the original pleadings and belongs to the State. Its unauthorised removal has the potential to undermine the integrity of the judicial process. If the file is removed from the building, it denies the Court staff access to their own records. Furthermore, the Registrar has no record of when the file left and when it was due to return. One should be careful not to trivialise an incident like this. Strictly speaking, the unauthorised use or borrowing of the property of another (in this case the State) may constitute an offence. In this particular matter, as mentioned, the conduct of the Applicant's legal representative resulted in a level of concern and distress amongst the Court staff. It hampered Ms Mazaka in performing her duties, albeit to a minor degree. Practitioners are not only required to respect the processes of the Labour Court, but they are also required to show due respect to the staff of the office of the Registrar. The Registrar is the executive arm of the judiciary in that she is responsible for carrying out the administrative and operational work that allows Courts to function effectively."

Discussion and Costs

[18]–[23] The Court found the indulgence granted on 19 February 2026 had been forfeited:

"[18] In the light of what had transpired subsequent to the initial discussion in my Chambers on 19 February 2026, the Court took the view that the indulgence, which had been granted the day before, had been forfeited. The parties were invited to make submissions as to the way forward. The Court asked why the matter should not be struck from the roll. The Applicant's legal representative submitted that the matter should not be struck from the Roll. Although there is little justification for taking such an approach, the Court has ultimately decided that, so as not to penalise the Applicant, who will already be prejudiced by an unnecessary delay caused by his legal representative, the application should be removed from the Roll. The First Respondent's Counsel expressed concern about the wasted costs. [19] Ordinarily, it is the Applicant's responsibility to ensure that the Court file is in order and if it is not in order and this causes a postponement, the Applicant would be liable for the costs of such a postponement. In Minister of Safety and Security v Jongwa as Pickering J, with Lowe J concurring, explained as follows: '[52]... On that day when the matter was called before Sangoni JP and Majeke AJ, it transpired that the papers were not in order. The matter was accordingly postponed, and the issue of the wasted costs occasioned thereby was reserved. [53]... Be that as it may, it is clear that the duty to ensure that the papers were in order for the hearing on 17 May 2021 rested on the applicant as dominus litis. That being the case applicant must bear the costs occasioned by the postponement.' [20] Whilst the Labour Court, exercising an equity jurisdiction, views the question of costs through a different lens to that which applies in civil courts, the above principle is not inconsistent with labour law jurisprudence in that, as a matter of both law and fairness, where one party is guilty of a procedural misstep which causes prejudice to the other, that party will ordinarily be liable for the wasted costs occasioned thereby. In The South African Police Services v Gerhard Coericius and three others Sutherland JA, dealing with a situation where there had non-compliance with the practice manual, explained that where the other side is prejudiced by a procedural misstep, as in this case, a cost order will be justified. The learned judge put it like this: '[13] The penalty for procedural blunders that have no substantive implications lie in costs orders... ... [22]... it would have been appropriate to order the appellant to bear the respondent's legal costs, owing to its procedural unorthodoxy being the source of the controversy' [21] A question which arose was whether, if the Court was going to make a costs order, it would be fair to penalise the Applicant with costs where, on the face of it, the postponement had been occasioned solely by the Applicant's legal representative. [22] Although not directly applicable to a general application, it is noted that Rule 29 (6) expressly provides that the failure to ensure that the file is in order may result in a costs order de bonis propriis. All things considered, there is scope for the Court to find that the Applicant's legal representatives should be liable for the costs. A legal practitioner has a duty to manage the case which he is prosecuting properly. On the face of it, this has not occurred. Furthermore, at first glance, the conduct of the Applicant's legal representative is exacerbated by his conduct in terms of which he admitted to removing the Court file from the Court building without authorisation. [23] Although the Applicant's legal representative was allowed to make representations during the hearing on 20 February 2026 under this heading, and although he would or at least should have been aware of the possibility of being saddled with a costs order de bonis propriis, given the provisions of Rule 29 (6), it was decided, at his request, to afford him a further opportunity to make representations in this regard. I stress that this would not ordinarily be necessary because the Rules and indeed plain logic should forewarn a practitioner that if the Court file is not in order, and the matter has to be postponed, this may result in a de bonis propriis costs order. In this matter, the Court decided to exercise its discretion to afford the Applicant's legal representative a further opportunity to make representations given the peculiar facts of the matter, which included the removal of the Court file from the building without authorisation."

Order

"1. The application is removed from the roll. 2. The application is not to be re-enrolled until the Court file is in order. 3. The Applicant is given 30 calendar days within which to ensure that the Court file is to the satisfaction of the Registrar. In so doing, the Applicant is required to address the issues identified in this judgment. 4. The costs of the proceedings are reserved. 5. The Applicant's legal representative is afforded 21 calendar days within which to provide a full explanation on oath for his conduct as described above and to make submissions as to why a de bonis propriis costs order should not be granted. In that affidavit (supported by confirmatory affidavit (s) where necessary), he is required to: 5.1 Record any issues which he may have with the recitation of the facts contained in the judgment. 5.2 Explain why an attempt was only made on 12 or 13 February 2026 to index the Court file when it would have been apparent that indexing and pagination were required after the order granted on 20 November 2025. 5.3 Explain as to how it came to be that the Applicant's legal representative was unaware that the Court file had not been paginated. The explanation should include: 5.3.1 Details of the attempt (s) made to index the Court file, including when they were made, how they were made and who from the office of the Registrar was involved. 5.3.2 All communications relevant to how the Applicant's legal representative was informed that the Court file could not be paginated because it was 'with the judge'. 5.4 Set out a detailed timeline of the events which occurred on 19 February 2026 subsequent to the adjournment of the matter and, in particular, to disclose the times and details of each communication which he had with an official from the Court about the file, as well as Ms Govender of the State Attorney about the file. 5.5 Explain why, when informed by Ms Majola and/or the State Attorney that he was not supposed to take the Court file out of the building, the Applicant's legal representative did not forthwith return it."