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Be careful what you wish for – the importance of relief sought in review applications


Key information


Any party dissatisfied with the outcome of an arbitration under the auspices of the CCMA or a Bargaining Council may refer the matter to the Labour Court for review as provided for in Section 145 of the Labour Relations Act, 66 of 1995 (“the LRA”).  A similar provision is contained in Section 158(1)(g) of the LRA enabling an aggrieved party to have a ruling or other act of an arbitrating Commissioner reviewed and set aside by the Labour Court.  In accordance with these sections, the Labour Court is empowered to review, set aside, and even replace the arbitration award or ruling with a different outcome.  A recent judgment of the Labour Appeal Court highlighted the importance of formulating the exact relief sought in the review applications.



By Lizane Steenkamp


In Real Time Investments 158 t/a Civil Works v Commission for Conciliation, Mediation & Arbitration and Others (JA77/19) [2022] ZALAC 7 (17 March 2022) (reportable) the Labour Appeal Court (“the LAC”) dealt with a matter wherein the relief granted by the Labour Court to the employee who applied for review of an arbitration award, was not supported by the relief the employee sought in his notice of motion or his founding affidavit in the review application.


The employee in this matter was dismissed by the employer following the assault of a fellow employee.  On arbitration, a Commissioner of the CCMA found the dismissal of the employee to have been fair.  Dissatisfied with this outcome, the employee applied to the Labour Court to have the arbitration award set aside.  In his notice of motion, the relief sought by the employee was that the arbitration award be reviewed and set aside, and that the matter be referred back to the CCMA for a new hearing before a different Commissioner.   The customary prayer for further and/or alternative relief was also included.


The employer initially opposed the review application.  The employer however decided at a later stage that given the limited scope of the relief sought by the employee, at worst, they would have to go back to the CCMA for a new arbitration.  This decision was taken to avoid unnecessary legal costs.  The review application was subsequently heard by the Labour Court in the absence of the employer party. 


When the review application was heard, the employee changed his stance, and wanted to be reinstated, without any prior notification to the employer.  The Labour Court proceeded to set the arbitration award aside, and replaced it with an order that the employee must be reinstated by the employer.


Reinstatement was not an outcome foreseen by the employer due to what was contained in the employee’s pleadings on review, and the employer petitioned the LAC to have the judgment of the Labour Court set aside.


The LAC essentially had to deal with the question of whether the Labour Court could grant an order of reinstatement in the absence of, and without having notified the employer thereof in circumstances where it was not sought by the employee in his application for review.


It is a well-established legal principle that the entire purpose of pleadings in any matter before Court is to clearly bring to the attention of the Court and the other parties to the matter, the precise issues upon which reliance is to be placed in seeking an order from the Court. This gives a party who wishes to oppose the matter due notice of what the applicant seeks in terms of relief, and gives such party the opportunity to answer thereto.


In Molusi and Others v Voges NO and Others 2016 (3) SA 370 (CC), the Constitutional Court stated that a party was not permitted to plead a particular case, and then seek to establish a different case at trial.  The Court stated further that it was also impermissible for a trial court to have recourse to issues falling outside the pleadings when deciding a case.


In Home Talk Developments (Pty) Ltd and Others v Ekurhuleni Metropolitan Municipality 2018 (1) SA 391 (SCA), the Supreme Court of Appeal (“the SCA”) dealt with the importance of pleadings and stated that the basic principle that a pleading should be so framed as to enable the other party to fairly and reasonably know the case he or she is called upon to meet. The SCA further stated that an address in Court can never be a substitute for adequate pleadings. 


In Minister of Land Affairs and Agriculture And Others v D & F Wevell Trust and Others 2008 (2) SA 184 (SCA) the SCA made it clear that trail by ambush could not be allowed, and parties cannot, for the first time in argument, raise matters that were not canvassed in their pleadings.   


In Cusa v Tao Ying Metal Industries & Others [2009] 1 BLLR 1 (CC), the Constitutional Court, in dealing specifically with review applications in the Labour Court, held that a party for review is bound by the grounds for review as set out in its pleadings, and the Court may not, of own accord raise issues not raised by the parties, unless it is a specific issue of law which arise from the pleadings.  Importantly, the Constitutional Court remarked that a deviation from the principle that a party is bound by its pleadings may well undermine the objectives of the LRA, one being the speedy and efficient resolution of labour disputes.  


In applying the authorities cited above, in the Civil Works case, the LAC went on to find that the Labour Court erred in ordering reinstatement of the employee in the absence of the employer, specifically in circumstances where no case for reinstatement was made out in the papers before the reviewing Court, and the employer was not notified that other relief would be sought by the employee.  The LAC also stated that the customary prayer for “further and/or alternative relief” did not extend so far as to allow the Labour Court to grant an order which was not contemplated prior to the hearing of the matter.


The LAC consequently upheld the employer’s appeal, and the matter has been referred back to the Labour Court to be heard afresh on an opposed basis.  


This case illustrates the importance of describing the outcome sought in the review proceedings carefully and accurately, as well as to deal with the reasons why the order is sought sufficiently.  Failure to do so carries with it the risk that the Labour Court cannot grant relief which was not sought, and may lead to an unsatisfactory outcome. 


It is consequently imperative that a party who intends to apply for the review of an arbitration award or ruling ensures that in their case is properly pleaded in the papers before Court.


Lastly, it is recommended that employers procure the services of suitably experienced practitioners to assist with applications for review in the Labour Court.


Advocate Lizane Steenkamp is a labour law specialist and member of the Pretoria Society of Advocates.  For more information or assistance with review applications in the Labour Court, kindly contact Jan du Toit at [email protected]


This article does not constitute legal advice and is based on the author’s interpretation of legislation and relevant case law. For an informed opinion and/or assistance with a labour-related matter, you are encouraged to arrange a formal consultation with the author.








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