Benteler South Africa (Pty) Ltd v Busakwe & others (Application for Leave to Appeal) [2026] ZALCPE 27

Seat of Court: Labour Court, Gqeberha (Port Elizabeth)

Date Delivered: 20 October 2026

Case No: PR177/22

Name of Judge(s): Kroon AJ

Factual Summary:

The Court had dismissed, with costs on the attorney and client scale, the employer's application to reinstate a lapsed review application against a bargaining council award in favour of an AMCU member, Mr Langbooi. It had found that the review had itself been launched substantially out of time without any condonation application, and that the employer's attorneys had been grossly negligent in leaving the supervision of the matter to secretaries operating an administrative 'system'.

The employer applied for leave to appeal by way of a twenty-page notice which repeated its earlier heads of argument verbatim, again prayed for reinstatement, and repeatedly accused the Court of actual bias: that it had tried to persuade the employer to abandon the application, relied on evidence from a contempt application, determined the review application, made adverse findings against the former attorney, and conducted a 'ploy' to discredit the system. It also challenged the punitive costs order. The issues, decided in chambers, were whether there was a reasonable prospect of success, the bias allegations, condonation for late submissions, and costs.

Legal Questions Considered:

[2] ‘The grounds of appeal are located deep in the Notice. They are ponderous and opaque. They lack focus and precision. The reason is not difficult to discern. They are laden with inappropriate argumentative matter. Their formulation obscures, rather than elucidates.’

[4] ‘In the Court's view, criticisms similar to those expressed in Songono may be levelled against the Notice. Indeed, the Notice comes perilously close to constituting an abuse of process, justifying its dismissal on this ground alone. This, notwithstanding, the Court intends, subject to what is set out below, to deal with the grounds of appeal insofar as they may be discerned.’

[6] ‘It is unacceptable that the prayer in the Notice seeks reinstatement of the review application when, in an application for leave to appeal, the relief sought should logically be that of leave to appeal.’

[11] ‘It is regrettable when, as in this case, a party resorts to allegations about the Court’s impartiality, which are based purely on assertion, without any proper evidential foundation. Unsupported allegations of bias are not conducive to the administration of justice. A Court decides matters on facts and legal argument, not epithets. Moreover, allegations of bias are not strengthened through repetition.’

[15] ‘The contention that the Court attempted to “convince” Benteler to “abandon” the reinstatement application and was subsequently unhappy when this did not occur does not reflect what actually transpired. What occurred is that, after Benteler’s legal representative had effectively conceded that the granting of the reinstatement application would have been an exercise in futility, the Court, twice, in the context of the debate around the jurisdiction of the Court to entertain an out-of-time review application, sought confirmation that Benteler wished to proceed with the application. On both occasions, Benteler’s legal representative responded in the affirmative. On both occasions, the Court accepted that answer without question, and the matter moved forward.’

[17] ‘The above exchange reveals that the Court did not ask Benteler’s legal representative to abandon the application. On the contrary, it sought confirmation that, notwithstanding the “insurmountable hurdle”, acknowledged by Benteler’s legal representative, the application would be persisted with.’

[19] ‘The Court was, prima facie, of the view that the absence of jurisdiction when it came to the review application was important, if not dispositive of the outcome of the reinstatement application. That being so, not only was the Court entitled, but in fact obliged, to raise its concern squarely and firmly with the representative of Benteler so that she was allowed a fair and full opportunity to deal with it. Had the Court not engaged with Benteler’s legal representative and given her a proper opportunity to deal with its concern, it would not have acted properly.’

[20] ‘Leaving aside, for a moment, the fact that Benteler has asserted actual bias, even where a litigant asserts a reasonable apprehension of bias, that litigant faces a high bar given the presumption of judicial impartiality. Mere annoyance, even exasperation, on the part of the Court is insufficient.’

[22] ‘Whilst a court adjudicating an application will obviously not be tasked with trial management, it must still conduct that application in a manner that ensures the economic and efficient adjudication of the matter, in accordance with the requirements of the proper administration of justice and the rule of law. The point is that, in adjudicating claims and, more so, applications where affidavits are already in the Court file, Courts are entitled to, and invariably do, adopt prima facie views, even strong prima facie views. This is the natural outworking of the Court having, in preparation for the matter, applied its mind to the Court process before it, and the issues raised therein. […] This is obviously permissible, and in most cases, unavoidable, provided only that the Court affords the parties a fair hearing and that it remains open to persuasion, an incident of the perceived art of objective reasoning.’

[23] ‘Practitioners who accept instructions to enter the arena of litigation, on the other hand, are not expected to be shrinking violets. They should not be overwhelmed by, or take offence at, a Court giving voice to its prima facie views. The appropriate response is for them to advance their clients’ interests firmly and fearlessly, with the necessary vigour but, at all times, within the constraints of proper forensic conduct. Robust and candid debate, provided it occurs within the bounds of propriety, is an entirely proper feature of litigation proceedings.[15]’

[25] ‘This paragraph asserts, in accusatory vein, that the Court had regard to an email that was part of the contempt of Court application to satisfy itself that the review application was out of time. The correct position is that no such email was handed up to the Court from the Bar or otherwise. The Court did not have sight of the above-mentioned email. That is why the judgment makes no mention of it.’

[28] ‘The Court did not need to consider extraneous evidentiary material because the founding affidavit in the review application, read together with the service affidavits, showed that the review application was out of time, and substantially so.[16]’

[33] ‘Insofar as it is so suggested, the Court did not make a determination on the review application itself, but rather considered that application as part of its over-arching duty to evaluate its prospects of success, a reinstatement application being akin to a condonation application.’

[34] ‘Without wishing to belabour the point, as pointed out in the main judgment, the Court is not only entitled, but obliged, to consider whether an applicant in a reinstatement application has taken all the necessary steps to ensure that the review application is ready to proceed, should it be reinstated.’

[35] ‘A Court cannot decide a reinstatement application in a vacuum. It must properly consider that which it is asked to salvage (the review application) so as to establish as to whether such application is, as it were, worth saving. The suggestion made on behalf of Benteler to the effect that the Court should blindly reinstate the review application and that any problems attendant upon the prosecution of the review application should be addressed at a later stage and post-reinstatement, is untenable. Adopting such an approach, in terms of which the proverbial cart is put before the horse, would mean that a review Court may well subsequently find that a review application was defective to the extent that it should not have been reinstated in the first place.’

[36] ‘The opinion of an ex-employee (Mr Biggs) on whether condonation was necessary can have no probative value and is, strictly, irrelevant.[17]’

[40] ‘Leaving aside the fact that it is questionable whether Benteler has a legal interest in pursuing a point which affects only Mr Biggs, an ex-employee, what in truth happened, is that the Court made a point of emphasising that it would not be making any findings, adverse or otherwise, regarding Mr Biggs’s conduct relating to his deposition to the affidavit relied upon in support of the reinstatement application. It left this task to the Legal Practice Council (the LPC).’

[49] ‘That said, given that the defective heads of argument were not remedied prior to the matter being heard, the Court was entitled to say something about their value, this in the light of the fact that it is trite that heads of argument are not only for the benefit of the other side, but for the benefit of the Court as well.’

[52] ‘Stripped of all embroidery, the crux of the case advanced by Mr Biggs in his founding affidavit in support of the reinstatement application was that, because the administrative system (the System) failed, the review application was not prosecuted timeously. The Court was duty-bound to analyse and evaluate the explanation (the reliance on the System as a defence) put forward for what was a substantial delay. In this context the main issue which the Court had to determine was whether Mr Biggs had delegated, or to use a less formal expression, outsourced, his professional duties to a secretary and whether it was permissible for him to have done so relying on the System. The Court found that such conduct amounted to an abdication by Mr Biggs of his professional duties.’

[54] ‘The circumstance that no such costs order was sought in the papers is, however, no bar to such an order being granted.’

[55] ‘The Court has wide discretion when it comes to costs. In circumstances where it is justified, a Court may, mero motu, grant a punitive cost order, provided that there is an opportunity for the party concerned to be heard. […] The Court thus sees no reason why, if a matter is contested and there can be no demonstrable prejudice, the same degree of flexibility should not apply when costs are sought on a punitive basis for the first time during argument, particularly where such an order would comport with the requirements of law and fairness. Whilst it may be said that it is desirable that notice of the costs order sought should, as a general rule, be given at the outset of the proceedings, this may not always be possible given the vicissitudes of litigation.’

[57] ‘If a Court has a discretion to award costs when none have been sought then all the more so it would it have a discretion to award costs on a scale not initially sought.[25]’

[59] ‘The Notice does not address the restrained test for interference on appeal where a lower court has exercised a discretion to refuse a reinstatement application. In the Court’s view, once it is accepted, as the Labour Appeal Court has held, that an application for reinstatement is in essence an application for condonation, it follows that the character of the discretion exercised by the Labour Court should be determined consistently with the jurisprudence governing condonation applications. Where a decision, such as a decision to refuse condonation, constitutes an exercise of what is termed a true discretion,[27] an appellate court is limited to interfering with the exercise of that discretion. It may only do so on narrow grounds. It is not at large to substitute its own assessment of the matter merely because it might have reached a different conclusion. Intervention is warranted only upon certain recognised grounds such as a failure to exercise that discretion judicially.’

[60] ‘As to the merits of the application for leave to appeal, the Court views it as bordering on frivolous litigation. Leaving aside the arguments about the Court’s approach to the absence of a condonation application in the review application, which are at best specious and at worst fallacious, the Notice does not, in any meaningful way, impugn the central finding in the main judgment. That finding is that Benteler’s legal representatives were grossly negligent in delegating their professional duty to supervise and monitor the review application to secretaries, and that this was not a case where the client could escape the consequences of its duly appointed agent. Thus, leaving aside the failure by Benteler to demonstrate prospects of success (given that the review application was substantially out of time and there was no explanation for the two-month delay as well as the inordinate delay in the failure to apply for condonation), the Notice did not join issue with the finding in the main judgment that, in any event, the non-compliance was so flagrant and so gross that it was unnecessary for the prospects of success even to be considered. Applying the reasoning of the Labour Appeal Court in Orange Grove Dairy, the Court would venture to suggest that if it had granted the application for reinstatement, that decision would have been liable to be set aside on appeal. To put it charitably, the application for leave to appeal is speculative and thin. By no stretch of the imagination can it be said that Benteler has met the threshold for granting leave to appeal.’

[61] ‘As alluded to in the introduction of this judgment, an allegation of actual bias is effectively an allegation of bad faith or misconduct. It carries in its train an insinuation that the Judge consciously abandoned his judicial oath. It is the type of allegation that should not be advanced lightly and for which there needs to be clear and concrete evidence.’

[65] ‘In the Court’s view, the sentiments expressed in De Lacy find application to this matter. It is also a matter which deserves the attention of the LPC insofar as the unsubstantiated allegations of bias are concerned.’

[66] ‘Accusing the Court of bias when it is doing no more than engaging a legal representative on the issues arising from, and possible outcomes of, an application, is improper.’

[68] ‘Ultimately, not even a semblance of a case was made out to substantiate the grave allegations of actual bias. No explanation, let alone any motive, was advanced as to why the Court would have acted in a manner so fundamentally at odds with its judicial duty. At no stage of the proceedings was any concern expressed about the manner in which the Court conducted the hearing.[37]’

[69] ‘In its opposition to the application for leave to appeal, AMCU sought that it be dismissed with costs on a punitive scale. In my view, although extraordinary in its nature, a further award of costs on this scale is warranted.’

[70] ‘Leaving aside the circumstance that, as alluded to above, the application for leave to appeal borders on the frivolous, Benteler has not taken to heart the criticisms in the main judgment and has committed the same sins of cutting and pasting, reshovelling content and demonstrating a cognisable lack of care in drafting the Court process relevant to the application for leave to appeal. In addition, the Notice itself is a rambling document which does not properly articulate grounds of appeal.’

[71] ‘More importantly, the Notice contains several gratuitous allegations of bias. They are ungracious and unedifying. It is a serious matter when forensic argument gives way to invective with the result that the gravitas of the proceedings is diminished. Such a strategy, of deploying what are described in the common vernacular as ‘cheap shots’, is inimical to the decorum owed to the Court.’

[72] ‘The Court is constrained to record that those sentiments apply with equal force to this matter where the baseless allegations of bias were, objectively speaking, part and parcel of a transparent attempt to frustrate the employee, Mr Langbooi, from enjoying the fruits of the Award.’

[73] ‘The allegations of bias deserve censure. […] In this matter, the allegations of bias are revealed as all the more contrived by the attempts to justify them, with reference to the record, through cynical hyperbole or, worse, distortion.’

[74] ‘The submissions filed on behalf of Benteler were late. AMCU did not object to condonation being granted pursuant to an application brought on behalf of Benteler. It is in the interests of justice that condonation be granted.’

Relief: The late delivery of the employer's submissions was condoned and the application for leave to appeal was dismissed, with costs on the attorney and client scale. The Registrar was directed to refer the judgment to the Legal Practice Council, drawing its attention to paragraphs 64 to 66 (the unfounded allegations of bias).

Judgment on SAFLII