Legal Requirements for Applications to Reinstate Reviews

What are the legal requirements for applications to reinstate reviews that have been deemed withdrawn or lapsed?

Written By of Cowan-Harper-Madikizela Attorneys

In the case of Digital Experience (Pty) Ltd v Veira, Jose Joaquim & Others (unreported JR2167/19) (1 November 2023) (LC) the Labour Court revisited the test for the reinstatement of review applications.

On 2 October 2019, the applicant delivered its review application and furnished security in respect of the Arbitration Award (“the Award”), in terms of section 145(7) of the Labour Relations Act 66 of 1995.

The applicant, however, failed to deliver the record of proceedings within sixty days, as prescribed by clause 11.2.2 of the Practice Manual of the Labour Court of South Africa (“the Practice Manual”) and the review application was deemed withdrawn in terms of clause 11.2.3 of the Practice Manual.

Eight months after the delivery of the record and twelve months since the original review application was delivered, on 7 October 2020 the first respondent delivered its answering affidavit together with an application for condonation. On 21 October 2020, the applicant delivered its replying affidavit in the review application together with an answering affidavit in to the condonation application. The applicant then did nothing further to prosecute the review application.

The matter was set down for hearing on 6 October 2021 for a determination on the condonation and review applications. At that hearing the Court postponed the matter and issued an Order that the applicant bring an application to reinstate the review within 10 days from the date of that Order.

The Court set out the following legal principles for reinstatement applications:

  • reinstatement applications are essentially condonation applications in which the applicant seeks an indulgence from the Court;
  • an applicant must show good cause for non-compliance with the Rules and Practice Manual. The question of prejudice does not arise if a good cause cannot be shown;
  • factors to consider are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case [Melane V Santam Insurance Co Ltd 1962Ltd 1962 (4) SA521 (A)];
  • the explanation for the delay must be sufficiently detailed covering the entire period of the delay. A reckless or intentional disregard of the Rules will not be condoned and neither will a lack of bona fides. [Floorworx Africa (Pty)Ltd V Mazars(Mazars (Gauteng) Inc and others (2023) ZAGPPHC 498];
  • the applicant must explain the cause of the delay which led to the review application lapsing and must also demonstrate that it acted promptly in launching the reinstatement application and set out the steps it has taken in a bona fide attempt to ensure the expeditious finalisation of the review if reinstatement is permitted. Overberg District Municipality V Independent Municipal & Allied Trade Union on behalf of Spangenberg & others (2021) 42 ILJ 1283 (LC);
  • a bona fide defence and good prospects of success are not sufficient in the absence of a reasonable and acceptable explanation for the default. [Colett V Commission for Conciliation, Mediation and Arbitration (2014) 6 BLLR 523 (LAC)];
  • the respondent’s interests in reaching finality, the convenience of the Court and avoidance of unnecessary delays in the administration of justice. [S V Di Blasi 1996 (1) SACR 1 (A)]; and
  • Condonation should be granted if it is in the interests of justice. This is determined by reference to the above factors including the nature of the relief sought, the nature and extent of the delay, the nature and cause of any other defect, the effect on the administration of justice, prejudice, and reasonableness of the applicant’s explanation for the delay or defect. [Brummer V Gorfil Brothers Investments and others (Pty) Ltd 2000Ltd 2000 (2) SA 837(CC)];

The Labour Court considered the above and found that the applicant had filed the record eighteen days late. However, the Court held that this period could not be considered alone and that the degree of lateness should be calculated from “both before and after the deemed withdrawal” of the review application. The date of delivery of the reinstatement application was therefore significant and was included when calculating the degree of lateness.

The Court concluded on the facts that the applicant had failed to show good cause why the review application should be reinstated and why its non-compliance with the Practice Manual should be granted. The applications were subsequently dismissed.

Where litigants delay the prosecution of the matter, they should tender a plausible explanation for the late filing of the record but also for the entire period of delay in bringing the reinstatement application.

Gael Barrable

Gael Barrable
Partner in Employment

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