Mavundla v Rapalane N.O & others [2026] ZALCJHB 390

Date of Judgment & Seat of Court: 14 October 2026, Labour Court, Johannesburg

Case No: JR1578/22

Name of Judge(s): Mahomed AJ

Summary of Factual Matrix:

The applicant, a VIP driver for Gotcha Security Services, had twice been reinstated by the CCMA after unfair dismissals, and in 2025 the Constitutional Court ordered his retrospective reinstatement and payment of remuneration for August 2019 to May 2021. Meanwhile, after a handful of brief and repeatedly postponed telephonic consultations in June and July 2021, the employer retrenched him on 31 July 2021 without severance pay. A CCMA commissioner found the retrenchment procedurally and substantively fair.

The applicant applied, one day late, to review the award. The employer's employee refused to accept service at its offices; some eleven months later it filed an answering affidavit raising only preliminary points (defective service, that the review was deemed withdrawn under the Practice Manual, and prematurity of condonation) without addressing the merits, and at the hearing sought leave to lead oral evidence in lieu of an answering affidavit. The issues were condonation, service, staleness, the evidential position, compliance with section 189 of the LRA, relief and costs.

Summary of Findings:

[16] ‘It was not disputed in the answering affidavit that the third respondent had sight of, and was aware of, the applicant’s review application by virtue of the encounter between the applicant and Ms Lai. It is also common cause that the parties had been involved in numerous CCMA, Labour Court and Constitutional Court disputes spanning a period of approximately five years. Accordingly, the refusal by the third respondent’s employee to accept the applicant’s papers can be put down to nothing more than a wilful intent to frustrate the applicant in his review application.’

[17] ‘It is important to note that rule 4(1)(b)(i), as it was under the old Rules, is effectively a verbatim copy of Uniform Rule 4(1)(a)(v) of the High Court. On that basis, it is analogous, in that High Court judgments considering service under rule 4(1)(a)(v) apply equally to the position under the old Labour Court Rules.’

[20] ‘It is common cause that the documents did in fact reach the attorneys. What is more telling, as I indicated to the parties during the hearing, is that there have been previous and protracted legal disputes between the parties stemming from 2019, culminating in the Constitutional Court judgment delivered in 2025. What that ultimately means is that both the service of the notice of motion and founding affidavit at the offices of the employer itself – which is a permissible place for service – and the service of the record on the erstwhile attorneys of record of the third respondent, where the attorney currently dealing with the matter on behalf of the third respondent was at the relevant time employed, together make that service effective.’

[21] ‘I accordingly find that service of the notice of motion and founding affidavit was good and proper, having regard to both Uniform Rule 4(1)(a)(v) and rule 4(1)(b)(i) of the old Labour Court Rules.’

[23] ‘Generally, the protocol of this court, as it was then and remains now, is that a litigant, in answering, deals with the point in limine it wishes to raise, but then states that, in the event the court does not grant condonation for whatever reason, or does not accept the point in limine as raised, it will deal with the founding affidavit ad seriatim, in the alternative, where necessary. It is not a provision of this court’s rules, either then or now, for a litigant to seek leave to supplement its papers, save where it is in the interests of justice and is absolutely necessary. Both litigants are required – as the third respondent itself conceded – to have all the papers in the litigation before the court within a twelve-month period. That means that, regardless of whether the third respondent believed service to be defective, it could not take the law into its own hands and make its own determination as to whether service was good.’

[24] ‘I accordingly find that the “staleness” allegation is unfounded, and that service of the record, and the prosecution of this matter within the twelve-month period, complied with the rules of this court and the Practice Manual as it then stood.’

[25] ‘The third point in limine, namely that the condonation application was premature because service had not been effected and had not been cured, cannot survive the finding made above. Service having been good and proper, the premise of the point falls away.’

[26] ‘In considering condonation then, it is needless to say, having regard to the above, the delay was minimal and non-substantial. The explanation is sufficient, and condonation is accordingly granted. As to costs on the condonation, I reserve those costs to be dealt with in the outcome of the whole application, that is, the review application itself.’

[27] ‘Condonation having been granted, the court was clothed with the necessary jurisdiction to deal with the review application. As there was no answering affidavit, and the court would not grant the third respondent any further opportunity to file a substantive answer to the application before it, the court had to deal with the matter on the papers of the applicant alone. The third respondent was not precluded from making legal submissions, and any submissions it wished to make from the bar, on a legal basis, were entertained by this court.’

[28] ‘The third respondent had not answered, materially or otherwise, the allegations in the applicant’s review application, and had neither sought condonation for the late filing of an answering affidavit nor filed one. It sought only an indulgence that the oral evidence of the would-be deponent to an answering affidavit be admitted. I found that there is no provision for such a process in our rules and, in the absence of any authority directing me otherwise, I refused the request for an indulgence.’

[31] ‘It was clear that, whilst the applicant did participate, and in fact attempted on numerous occasions to engage with the third respondent in the consultation process, it was in fact the third respondent that refused, or was unavailable for, such engagement. In addition, and as clearly shown in the transcribed record filed by the applicant, the third respondent was unable to prove that it had complied with its statutory requirements under section 189 of the Labour Relations Act[5] (LRA), nor that it had offered any reasonable alternative position, nor that, in the absence of acceptance of an alternative position, the applicant was duly paid his severance package – all being statutory obligations in accordance with section 189 of the LRA.’

[35] ‘This stands to reason: where no representations are made, or there is a lack of engagement, one must turn to various authorities which say that despite the employees failure or refusal to consult, the employer must still fulfil its statutory obligations.’

[36] ‘This is critical because, having regard to the testimony of the third respondent’s own witnesses contained in the transcribed record before the court, it is clear that the third respondent failed dismally in the execution of its obligations under section 189 and, equally important, the requirements set out in the authorities referred to above.’

[37] ‘It follows that the first respondent grossly erred in finding that the applicant’s dismissal was both procedurally and substantively fair. That finding cannot stand. The award falls to be reviewed and set aside, and to be substituted with an order that the dismissal of the applicant was both procedurally and substantively unfair.’

[41] ‘Accordingly, prescription in respect of the claim awarded by the Constitutional Court only started to run once that judgment was handed down in June 2025. Despite this, and having regard again to the decision in Hendor Mining Supplies, it is clear that, in any event, the remuneration awarded to Mr Mavundla is a judgment debt and, per the majority decision in that matter, such a judgment debt expires only after thirty years.’

[42] ‘I have had regard to the long and protracted history between the parties; the interests of justice, and the need to ensure that the order I make is not merely academic, or one that will cause the parties to end up back in court. That being said, it must be borne in mind that the applicant has been unfairly out of work since 31 July 2021. Whilst I have considered the possibility of the parties entering into a further labour dispute, I am satisfied that the applicant is entitled to his retrospective remuneration, including any benefits he would have accrued had he not been so unfairly dismissed.’

[44] ‘I therefore start from the premise that the third respondent should not be ordered to pay costs merely because its points in limine failed. The question is whether its conduct, measured against section 162(2)(b), justifies departing from the general rule. In my view it does.’

[45] ‘The third respondent's conduct in these proceedings is not that of a bona fide litigant seeking to vindicate labour rights, which Zungu and UPSCO protect from the chilling effect of adverse costs orders. On the contrary, its conduct was calculated to frustrate the applicant's access to this court.’

[46] ‘First, its employee refused to accept service of the review application. That refusal came against the background of about five years of litigation between the same parties, culminating in the Constitutional Court, and I have found it amounted to nothing more than a wilful intent to frustrate the applicant. Second, the third respondent then made its own decision that service was defective, and on that basis did nothing for about eleven months. It is not open to a litigant to take the law into its own hands in this way. Third, when it eventually delivered an answering affidavit, the affidavit raised only technical points in limine, and none of them had merit. Contrary to the established practice of this court, it did not deal with the merits of the review in the alternative. Fourth, having placed itself in that position, it asked the court for an indulgence, for which there is no provision in the rules, to lead the oral evidence of a would-be deponent instead of filing an answering affidavit.’

[47] ‘Taken together, this conduct caused unnecessary delays. It forced the applicant to bring a condonation application for a delay of one day, and to meet points that should never have been taken. It also consumed judicial resources that should have been spent on the merits.’

[48] ‘The considerations in section 162(2)(b)(i) and (ii) therefore weigh decisively against the third respondent. Fairness requires that the applicant not be left to carry the costs caused by that conduct. The third respondent must accordingly pay the applicant's costs, including the costs of the condonation application.’

Relief: Condonation for the one-day late review was granted. The award of 7 June 2022 was reviewed and set aside and replaced with a finding that the retrenchment was procedurally and substantively unfair, and the applicant was retrospectively reinstated from 31 July 2021. The employer was ordered to pay the costs of the review and of the condonation application, including the costs of counsel.

Judgment on SAFLII