Department of Education: Free State Province v Suid-Afrikaanse Onderwysers Unie (SAOU) obo B Greyvenstein and Others

The Department of Education: Free State Province (applicant) launched a review application on 10 October 2023 against an arbitration award issued by the second respondent concerning the regrading of Riebeeckstad Secondary School and the impact on the principal's salary. The applicant was notified by the second and third respondents on 24 October 2023 that the record of proceedings was available. The applicant's attorney became aware of this notification on 6 November 2023 upon returning from leave. The applicant was required to file a complete record within 60 days from notification (by 23 January 2024) in terms of the Practice Manual. The applicant filed parts of the record on different dates: the first part on 15 November 2023, the transcribed record on 24 January 2024, and part 2 on 29 February 2024. The full record was ultimately filed on 12 March 2024 with the registrar. The delay was attributed to the attorney being on leave when notification was received and the time required to obtain and transcribe audio recordings. The review application was deemed withdrawn for failure to comply with the 60-day time limit, prompting the applicant to launch this reinstatement application on 8 March 2024.

• Whether the applicant demonstrated good cause for the delay in filing the record of proceedings
• Whether the review application should be reinstated despite being deemed withdrawn under the Practice Manual provisions
• Whether the applicant has arguable prospects of success in the underlying review application
• Whether the balance of prejudice favored reinstatement
• Whether non-joinder of the Head of Department rendered the applications defective

The application to reinstate the review application was granted. There was no order as to costs.

An application for reinstatement of a review application deemed to have been withdrawn for failure to file a record within the prescribed time is in essence an application for condonation, requiring the applicant to show good cause. Good cause may be established where: (1) a detailed and reasonable explanation for the delay is provided; (2) the delay is not unduly long; (3) the applicant has taken steps to prosecute the matter rather than taking no or inadequate steps; (4) the applicant demonstrates arguable (not excellent) prospects of success in the underlying review; and (5) the balance of prejudice favors reinstatement. The provisions of clause 11.2.3 (deemed withdrawn) and clause 11.2.7 (regarded as lapsed) of the Practice Manual should bear substantively similar meanings and both forms of default must be capable of remediation by an application to reinstate.

The Court observed that there was no good reason to suppose that 'deemed to be withdrawn' and 'regarded as lapsed' under different provisions of clause 11.2 of the Practice Manual should bear substantively different meanings, given both address related aspects of delay in prosecuting review applications. The Court noted that the issue of alleged non-joinder of the Head of Department could properly be ventilated and determined in the review application itself, suggesting that not all procedural objections need be finally resolved at the reinstatement stage. The Court implicitly recognized that where records become available to an applicant in piecemeal fashion at different times, and the applicant serves parts as they become available, this demonstrates diligence in prosecuting the matter.

This case provides guidance on the application of the Labour Court Practice Manual provisions relating to deemed withdrawal of review applications for failure to file records timeously. It confirms that reinstatement applications are essentially condonation applications requiring good cause to be shown. The judgment demonstrates a pragmatic approach where an applicant has taken reasonable steps to compile and file the record even if done outside the prescribed timeframe, particularly where delays are not entirely attributable to the applicant's fault. It clarifies that applicants need not demonstrate excellent prospects of success at the reinstatement stage, and that the balance of prejudice is a relevant consideration. The case also illustrates that technical objections such as non-joinder can be deferred to the substantive hearing where appropriate.