Lazanne Truter v Travelstart Online Travel Operations (Pty) Ltd

The applicant filed an unfair discrimination claim on 1 December 2016. The respondent filed a notice of exception on 26 January 2017. On 13 June 2017, more than six months after filing her statement of case, the applicant's attorneys filed a notice of intention to amend. The amended statement was only filed on 8 February 2018, with a condonation application filed the next day. The respondent objected on grounds that more than six months had elapsed between court processes, which under clause 16.1 of the Labour Court Practice Manual meant the referral should be archived. Judge Steenkamp dismissed the condonation application on 21 November 2018 and ordered the applicant's attorneys to pay costs de bonis propriis. The applicant then brought an application on 22 May 2019 to retrieve the case file from archives, claiming the court was unaware of her personal efforts to pursue the claim, which her attorneys had failed to bring to the court's attention.

• Whether an application to retrieve an archived file could be entertained where a previous application for condonation of the same delays had been refused
• Whether the principle of res judicata applied to bar the retrieval application
• Whether the court could reconsider condonation based on new evidence not presented in the original condonation application
• The relationship between applications for condonation and applications for retrieval of archived matters

The respondent's in limine objection that the application is res judicata was upheld. The retrieval application was dismissed. No order was made as to costs.

An application to retrieve a file from archives is inseparable from an application for condonation for non-compliance with the Labour Court Practice Manual. Where a court has already refused to condone delays in prosecuting a matter, the principle of res judicata applies to bar a subsequent application to retrieve the archived file based on the same periods of delay. The fact that new evidence was not presented in the original condonation application does not entitle a party to bring a retrieval application to effectively seek reconsideration of the condonation issue, as this would result in the court revisiting a matter already decided. A refusal to condone non-compliance with time periods for prosecuting a matter is dispositive of the question whether the archived matter should be retrieved.

The court noted that while fresh evidence may exceptionally be introduced on appeal (referring to Rail Commuters Action Group v Transnet), the retrieval application was not an appeal proceeding and therefore this exception did not apply. The court also observed that it would be illogical for a court to condone non-compliance that led to archiving but refuse to reinstate the case, unless considering other unrelated conduct of the dilatory party. The court acknowledged that the applicant wished to raise facts not presented by her attorneys in the original application, recognizing the potential unfairness to her personally, but held that this did not overcome the res judicata principle.

This case clarifies the relationship between condonation applications and applications to retrieve archived matters in the Labour Court. It establishes that once a court has refused to condone non-compliance with the Labour Court Practice Manual regarding time periods for prosecution of a matter, that decision is dispositive of any subsequent application to retrieve the archived file based on the same delays. The case reinforces the principle of res judicata in Labour Court procedural matters and demonstrates that parties cannot circumvent an adverse condonation decision by bringing a retrieval application based on new evidence that should have been presented in the original condonation application. It emphasizes the importance of legal representatives putting all relevant evidence before the court in condonation applications, as a second opportunity will generally not be granted through a retrieval application.