Isaiah JM Machaba v Department of Roads and Transport

The applicant, Isaiah Machaba, was employed on a fixed term contract by the Department of Roads and Transport as Director from 1 July 2009, later transferred to Director: Security Management on a contract expiring 30 September 2016. Before expiry, he was offered and accepted a position as Director: Roads Maintenance and Fleet Services from 1 April 2016, but was subsequently advised his contract would expire on 3 December 2016 (his last day of employment). On 6 January 2017, he referred an unfair dismissal dispute to the GPSSBC. On 29 August 2017, an arbitrator found his dismissal procedurally and substantively unfair, awarding re-employment and compensation. On 8 November 2017, the respondent delivered a review application (6 days late) seeking to set aside the award. The GPSSBC filed notice of compliance on 21 November 2017 and the State Attorney uplifted the record on 23 November 2017. The respondent only filed the record on 8 June 2018, almost 4 months after the 60-day time limit expired (which would have been 16 February 2018). The delay was attributed to the Assistant State Attorney's erroneous belief that the arbitration had been recorded and she was waiting for audio recording, despite multiple letters from the applicant's attorneys enquiring about progress (8 January, 16 January, and 20 March 2018). The applicant launched an application to dismiss the review for want of prosecution on 7 June 2018. The respondent then filed an application for condonation for late filing of the record on 20 June 2018.

• Whether the respondent's review application should be dismissed for want of proper prosecution due to failure to file the arbitration records within the prescribed 60-day time limit
• Whether condonation should be granted for the late filing of the arbitration records
• Whether the explanation for delay (attorney negligence) was sufficient to warrant condonation
• The proper interpretation and application of Rule 7A of the Labour Court Rules and clauses 11.2.1, 11.2.2, and 11.2.3 of the Practice Manual
• The test for condonation and the factors to be considered (length of delay, explanation for delay, prospects of success, prejudice to parties)
• The extent to which a litigant can escape consequences of attorney negligence

1. The application to dismiss the respondent's review application for want of proper prosecution is dismissed. 2. The respondent's application to condone the late filing of the records of the arbitration proceedings is granted. 3. The late filing of the applicant's opposing affidavit in respect of the respondent's condonation application is granted. 4. The State Attorney is to pay the costs of the applicant in the application to dismiss and the application for condonation of the late filing of the records of the arbitration proceedings on an attorney and client scale.

The binding legal principles established are: (1) The Labour Court Practice Manual must be strictly complied with and is binding, though it does not limit judicial discretion (clause 2.2 of Practice Manual); (2) Review applications must be prosecuted with the diligence of urgent applications; (3) Where records are not filed within the prescribed 60-day period under clause 11.2.2 of the Practice Manual, the review application is deemed withdrawn unless condonation is sought and granted; (4) In considering condonation for late filing, courts must consider: the length of delay, the explanation for delay, prospects of success, and prejudice to parties; (5) Attorney negligence does not automatically absolve a litigant - there are limits beyond which a litigant cannot escape consequences of attorney's lack of diligence (applying Saloojee principles); (6) A litigant relying on attorney negligence must explain that none of it is imputed to themselves; (7) Without reasonable and acceptable explanation for delay, prospects of success are immaterial, but very strong prospects of success may compensate for inadequate explanation and long delay; (8) The court has inherent discretion to dismiss proceedings for undue delay and abuse of process; (9) The test is whether interests of justice and fairness to both parties, and administration of justice, dictate the outcome; (10) Punitive costs orders on attorney and client scale are appropriate where attorney negligence causes unnecessary litigation.

The Court made several non-binding observations: (1) The purpose of the Practice Manual is to promote access to justice, consistency in practice and procedure, and to set guidelines on standards of conduct expected of practitioners in the Labour Court; (2) Failure to comply with Practice Manual directives will be viewed in a serious light and may result in costs orders de bonis propriis against the non-compliant representative; (3) Condonation is not merely for the asking nor a mere formality - it requires satisfying the court; (4) The dismissal of an application is a drastic remedy which will only be granted in exceptional circumstances; (5) The maxim vigilantibus non dormientibus lex subveniunt (the law aids those who are vigilant, not indolent) applies where a party fails to diligently prosecute proceedings; (6) The Court noted (obiter) that it appeared from the arbitration award that the respondent had strong prospects of success, particularly due to the "impermissible manner in which the award has been framed," though this was not elaborated upon as the substantive review was not before the Court; (7) Policy considerations dictate that statutory purpose of expeditious dispute resolution and mechanisms in Rules and Practice Manual ensure review applications are dealt with efficiently within specified time limits; (8) The Court expressed concern that applications for condonation appear before it "on an almost daily basis" and reminded practitioners of the need for diligence.

This case reinforces several important principles in South African labour law procedure: (1) The binding nature of the Labour Court Practice Manual and the requirement for strict compliance with its directives, while preserving judicial discretion; (2) The consequences of failure to comply with Rule 7A time limits for filing records in review applications; (3) The proper approach to condonation applications where attorney negligence is the cause of delay, reaffirming the principle from Saloojee that there are limits beyond which a litigant cannot escape consequences of attorney's lack of diligence; (4) The court's inherent power to dismiss applications for undue delay in prosecution; (5) The balancing exercise required in condonation applications considering delay, explanation, prospects of success and prejudice; (6) That very strong prospects of success may compensate for inadequate explanation and lengthy delay; (7) The appropriateness of punitive costs orders (attorney and client scale) against attorneys whose lack of diligence causes unnecessary litigation. The judgment serves as a warning to legal practitioners, particularly state attorneys, about the importance of diligent prosecution of review applications and compliance with court rules and practice directives.