Chili v Ethekwini Municipality & others [2026] ZALCD 52

Date of Judgment & Seat of Court: 1 October 2026, Labour Court, Durban

Case No: D346/2021

Name of Judge(s): Lallie J

Summary of Factual Matrix:

The applicant had been appointed as a principal clerk in the eThekwini Municipality’s Durban Solid Waste department. In an unfair labour practice dispute brought by another employee, represented by IMATU, the bargaining council arbitrator set aside her appointment by an award of 23 February 2021, and her services were terminated on 30 April 2021. She filed a review application on 31 May 2021 and the record on 31 August 2021, but took no further step; her attorneys mistakenly believed they had to await the municipality’s answering affidavit. In July 2024 they learnt that the review had lapsed and been archived under clauses 11.2.7 and 16.1 of the Practice Manual.

On 26 September 2024 she applied to reinstate the review, which the municipality opposed. The issues were the extent of and explanation for the delay, prospects of success (including her non-joinder at arbitration), prejudice to the municipality, which had since given effect to the award and was filling the post, and the interests of justice.

Summary of Findings:

[4] ‘A reinstatement application is, for all intents and purposes a condonation application as the applicant seeks have her non-compliance with the provisions of clause 11.2.7 and 16.1 of the Practice Manual condoned.’

[5] ‘I agree with the applicant that the correct extent of the delay is 2 years and 6 months.’

[8] ‘The applicant’s version is consistent with the first respondent’s contention that for more than two years she sat on her laurels and did nothing about her case. She failed to make enquiries from her attorneys on the progress of her review application. Her conduct is inconsistent with that of an employee who seeks to have an award terminating her employment reviewed and set aside. An employee who is keen to get her job back does not wait for over 2 years without making enquiries about her case. He or she takes active steps to ensure that the process to her or his reinstatement proceeds to finality. The applicant must take responsibility for sitting on her right to pursue her review for over two years. Her conduct has consequences in that it reasonably led the first respondent believe that she had lost interest in her review application. She may also not hide behind her attorney’s failure to pursue her case diligently because her inertia for an extended period conveyed her clear lack of interest in her case.’

[9] ‘I have considered the applicant’s explanation that her attorneys’ mistake caused the delay. Attorneys have a legal obligation to act diligently on behalf of their clients. In Saloojee and Another v Minister of Community Development[3] it was held that the applicant will not automatically be excused for its attorney’s negligence. I accept the first respondent’s submission that the applicant’s attorneys failed to act with the necessary diligence. If I were to accept that the step following the filing of the record was the filing of the answering affidavit, waiting for over two years for the filing of the affidavit is unreasonably long. If they were keen on pursuing the review application they would have reminded the first respondent’s attorneys to file the answering affidavit. A further alternative open to them, based on their mistaken view, was to set the review down for hearing. They did nothing. Their omission resulted in the first respondent reasonably believing that the applicant was no longer exercising her right to review. The applicant’s explanation for the excessive delay is grossly inadequate and unreasonable.’

[10] ‘The first respondent’s attempts to disprove the applicant’s submissions were unsuccessful. As an interested party in the arbitration proceedings the applicant should have been joined and afforded an opportunity to protect the position she had been appointed to and formed the subject of the unfair labour practice dispute. The applicant made allegations which, if proved, could lead to the success of her review application. She therefore proved prospects of success.’

[11] ‘Although the applicant denied that the first respondent has shown that it will suffer prejudice should this application succeed she made no allegations disputing the first respondent’s factual allegations on prejudice. I must therefore accept the undisputed facts especially because they are not far-fetched. I agree with the first respondent that it had no legal obligation to prompt the applicant to pursue her review application. The first respondent has given effect to the award, recategorized the impugned post and is in the final stages of filling it. The arbitration award was issued on 23 February 2021 and the applicant’s services were terminated on 30 April 2021. The first respondent is a municipality. It has constitutional obligations to fulfil and it acts through its employees in fulfilling some obligations. It could not have been expected to wait for over two years to fill the impugned position with the hope that some day the applicant would pursue her review application. The prejudice the applicant stands to suffer as a result of the refusal of this application is self-created. The first respondent will suffer more prejudice should this application succeed and an opportunity created for the applicant to exercise a right she elected to abandon.’

[12] ‘I have taken into account the applicant’s right to access to courts which is enshrined in section 34 of the Constitution of the Republic of South Africa, 1996 (the Constitution).’

[13] ‘The importance of the limitation of the right to review is that the LRA is designed and intended to ensure an expeditious resolution of labour disputes. […] The requirement of the expeditious resolution of labour disputes is consistent with the nature of the employment relationship and the spirit and letter of the LRA. Employees must be protected from unreasonable delays before exercising their rights in terms of arbitration awards in their favour while employers need to continue with their business operations when the awards are in their favour. There is no other less stringent means of achieving the purpose of section 145(5) which is consistent with clause 11 and 16 of the Practice Manual. The only means is to determine whether the applicant has shown good cause for condonation.’

[14] ‘The 2 years and six months delay is substantial. The explanation for the excessive delay is inadequate and unreasonable. The prejudice the first respondent may suffer if this application is granted outweighs the prejudice the applicant may suffer as a result of its refusal. Prospects of success in the present circumstance where the other factors weigh against the applicant especially the excessive delay and the absence of its reasonable explanation, cannot assist the applicant. The applicant has, in the circumstance, not shown good cause to have the delay condoned. The interest of justice does not justify condonation of the excessive and poorly explained delay which the applicant is largely responsible for.’

[15] ‘Fairness does not, in the circumstances of this case, justify a costs order against the applicant who attempted to reinstate her review application and open the possibility to her reinstatement.’

Relief: The application for the reinstatement of the review application was dismissed, with no order as to costs.

Judgment on SAFLII