Alinah Hlubi v B S Mthethwa and Others

The applicant filed a review application on 5 April 2018. The registrar informed the applicant on 25 May 2018 that the recordings were ready for collection and the applicant's attorney collected them on 29 May 2018. The records were sent to transcribers on 29 May 2018. The transcribers completed the transcript (over 1000 pages from 12 days of arbitration) on 19 October 2018. The applicant delivered the transcript of the record with a supplementary affidavit on 30 November 2018, approximately 3 months outside the required 60-day period (which expired on 15 August 2018). The Labour Court archived the review application on 29 January 2020 in terms of the Practice Manual paragraph 11.2.3, deeming it withdrawn. The third respondent raised this issue as a point in limine in February 2019, but the applicant's attorney did not take action until receiving a copy of the Court Order deeming the review withdrawn. The applicant then applied in October 2020 to revive the review application and condone the late filing of the record.

• Whether the delay of approximately 3 months in filing the transcribed record should be condoned
• Whether a reasonable and acceptable explanation was provided for the delay
• Whether the review application should be revived despite deemed withdrawal under Practice Manual paragraph 11.2.3
• The applicable legal principles for revival and condonation applications in the Labour Court
• The relevance of prospects of success in revival applications
• Whether deliberate disregard of Practice Manual provisions should affect the exercise of the Court's discretion

The application to revive the review application and condone the late filing of the transcribed record was dismissed with costs.

In revival applications (as in condonation applications), the court exercises a discretion judicially upon consideration of all facts, including the degree of delay, explanation for delay, prospects of success, and importance of the case. Without a reasonable and acceptable explanation for delay, the prospects of success are immaterial, and an application for revival should be refused. An applicant must provide a clear and convincing explanation for all periods of delay and for any non-compliance with Practice Manual or Rules provisions. Deliberate disregard of Practice Manual provisions, particularly where the party has been put on notice of the non-compliance and fails to act, will result in refusal of revival applications. The Labour Court Rules and Practice Manual do not require simultaneous delivery of the supplementary affidavit and transcript of record.

The Court adopted with approval the approach in MEC Department of Health Eastern Cape v PHSBC that it is not a requirement for an applicant to demonstrate excellent prospects of success to gain reinstatement, since all that would be obtained is a regain of the automatic right of review which may still be dismissed or upheld. However, the Court noted this does not assist an applicant where the explanation for delay is inadequate. The Court also observed that when a point in limine regarding deemed withdrawal is raised, an application for reinstatement ought to be treated the same way as an application for extension of time where consent is refused.

This case reinforces the strict approach South African labour courts take to compliance with Practice Manual timelines and the requirement for full and adequate explanations for delays. It confirms that deliberate disregard of procedural rules will not be condoned, particularly where the applicant was put on notice of the non-compliance and failed to act. The case demonstrates the interplay between delay, explanation, prospects of success, and the importance of the matter in condonation/revival applications, and emphasizes that without a reasonable explanation for delay, the court will not consider prospects of success. It serves as a warning to legal practitioners about the consequences of failing to comply with procedural requirements and the importance of acting promptly when non-compliance is brought to their attention.