Kgoale v Thaba Chweu Local Municipality and Others (JR19/22) [2025] ZALCJHB 148 (3 April 2025)
- Citation
- [2025] ZALCJHB 148
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- M Makhura
- Case number
- JR19/22
More details
- Court
- Labour Court Johannesburg
- Panel
- M Makhura
- Case number
- JR19/22
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that although the applicant failed to provide an affidavit of service as required by rule 9(2)(a) and (b), the interests of justice warranted the re-enrolment of the application for leave to appeal. The judge exercised discretion to re-enrol and grant leave to appeal, noting that the applicant's attempt to serve the submissions on the judge's secretary, while procedurally deficient, did not warrant a denial of access to appeal. The application for leave to appeal was therefore granted.
Court disposition
Application for leave to appeal re-enrolled and granted.
Orders
- The application for leave to appeal is re-enrolled.
- The application for leave to appeal is granted.
02
Material facts
Parties
Thoka Makorwane Patrick Kgoale
ApplicantThaba Chweu Local Municipality
RespondentCommission for Conciliation, Mediation and Arbitration
RespondentLetsema Mokoena N.O.
Respondent03
Procedural history
Posture
Leave to Appeal / Application for Re Enrolment and Leave to Appeal
04
Questions and positions
Legal issues
- 01
Whether the application for leave to appeal should be re-enrolled despite previous non-compliance with Rule 67(5).
- 02
Whether the applicant complied with the service requirements under the Labour Court Rules.
- 03
Whether leave to appeal should be granted on the merits.
Party arguments
- Applicant
- The applicant argued that he served the submissions on the judge's secretary in accordance with rule 9(1)(a)(iv) of the Labour Court Rules. He contended that this constituted proper service and sought re-enrolment and determination of his application for leave to appeal.
- Respondent
- The respondents did not file opposing papers for this application. The court considered the applicant's compliance with the rules and the interests of justice in deciding whether to re-enrol and grant leave to appeal.
05
Court’s reasoning
Legal principles
- 01
Labour Court Rules
Rule 67(4) requires that applications for leave to appeal and any subsequent process must be served on the secretary to the judge from whom leave is sought or any judge's secretary at the seat where the matter was heard.
- 02
Labour Court Rules
Rule 9(2)(a) and (b) require proof of service by affidavit containing necessary averments.
- 03
Labour Court jurisprudence
The court may exercise discretion to re-enrol matters in the interest of justice, even where there has been non-compliance with procedural rules.
06
Ratio, limits and disposition
Ratio decidendi
The court found that although the applicant failed to provide an affidavit of service as required by rule 9(2)(a) and (b), the interests of justice warranted the re-enrolment of the application for leave to appeal. The judge exercised discretion to re-enrol and grant leave to appeal, noting that the applicant's attempt to serve the submissions on the judge's secretary, while procedurally deficient, did not warrant a denial of access to appeal. The application for leave to appeal was therefore granted.
Obiter and limits
- The distinction between filing and service must be maintained; filing submissions at court does not equate to proper service under the rules.
- Procedural non-compliance may be condoned where the interests of justice require it, but parties should strive for strict adherence to the rules.
Court disposition
Application for leave to appeal re-enrolled and granted.
- The application for leave to appeal is re-enrolled.
- The application for leave to appeal is granted.
Source and reliance status
Labour Court Johannesburg
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Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR19/22
In the matter between:
THOKA
MAKORWANE PATRICK KGOALE
Applicant
and
THABA
CHWEU LOCAL MUNICIPALITY
First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
LETSEMA MOKOENA N.O.
Third Respondent
Heard: In Chambers
Delivered: 3 April 2025
JUDGMENT:
RE-ENROLMENT &
APPLICATION FOR LEAVE TO APPEAL
MAKHURA, J
[1] On 20 March 2025, this Court handed down a judgment and order in terms of which the application for leave to appeal was struck from the roll for non-compliance with Rule 67(5) of the Rules Regulating the Conduct of the Proceedings of the Labour Court[1]. The applicant has now filed an affidavit seeking the re-enrolment of the application for leave to appeal and the determination thereof.
[2] Rule 67(4) requires the application, and by implication any subsequent process, to be “served” with the secretary to the judge from whom leave to appeal is sought or any judge’s secretary in the seat where the matter was heard. The applicant contends that he served the submissions on the judge’s secretary in terms of rule 9(1)(a)(iv) of the rules of this Court.
However, he failed to prove service in terms of rule 9(2)(a) and (b) of the rules because there was no affidavit of service making the necessary averments in terms of rule 9(2)(b). Paragraph 12 of his affidavit does not take the matter any further as the deponent
attended the court to “file” the submissions, which must not be misconstrued with service.
[3] Despite the above, I have decided to exercise my discretion to re-enroll the application and determine it in the interest of justice. Having considered the grounds in the application, I have decided to grant the application for leave to appeal.
[4] In the premises, the following order is made:
Order
1. The application for leave to appeal is re-enrolled.
2. The application for leave to appeal is granted.
M. Makhura
Judge of the Labour Court of South Africa
[1] GN 4775a in GG 50608 of 3 May 2024.
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