Thembakazi Ntangazana v Member of Executive Council for The Department of Education, Eastern Cape (390/2023) [2025] ZASCA 160 (23 October 2025)

Case Note

Thembakazi Ntangazana v Member of Executive Council for the Department of Education, Eastern Cape (390/2023) [2025] ZASCA 160 (23 October 2025)

Reportability

The judgment is expressly marked “Not Reportable”. Nonetheless, the decision is of practical and doctrinal significance because it elucidates the scope and operation of section 17(2)(f) of the Superior Courts Act 10 of 2013, including its remedial purpose and its interaction with condonation principles when a reconsideration referral lapses through delay. The court explains that reconsideration under section 17(2)(f) “keeps the door of justice ajar” to prevent injustice where errors, mistakes or overlooked considerations may have led to an incorrect refusal of leave to appeal.

The case is also significant for reaffirming the balancing exercise in condonation applications where an inadequate explanation for delay may be trumped by strong prospects of success, and conversely, where weak prospects may undermine even a full explanation. This calibration is applied in the specific context of a lapsed section 17(2)(f) reconsideration, a relatively discrete procedural posture that frequently arises in appellate practice.

Further, the judgment flags the presence of possibly conflicting High Court rulings on closely related procedural and jurisdictional issues as an “exceptional circumstance” warranting reconsideration. Even though the statutory text governing section 17(2)(f) was amended in April 2024, the court’s articulation of the provision’s function, and its recognition of conflict and the risk of injustice as triggers for intervention, remains instructive for both the pre- and post-amendment tests.

Cases Cited

Liesching and Others v S [2016] ZACC 41; 2017 (2) SACR 193 (CC); 2017 (4) BCLR 454 (CC) para 54.

The Lion Match Company (Pty) Ltd v Commissioner, South African Revenue Service [2025] ZASCA 112.

Bidvest Protea Coin Security (Pty) Ltd v Mabena [2025] ZASCA 23; 2025 (3) SA 362 (SCA).

Motsoeneng v South African Broadcasting Corporation Soc Ltd and Others [2024] ZASCA 80; 2025 (4) SA 122 (SCA).

Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] ZACC 48; 2014 (5) SA 138 (CC); [2013] 2 All SA 251 (SCA) para 11.

National Director of Public Prosecutions v Victor NO and Others [2025] ZASCA 31; 2025 (1) SACR 561 (SCA) paras 8 and 15.

Baloyi v Public Protector and Others [2020] ZACC 27; 2022 (3) SA 321 (CC); 2021 (2) BCLR 101 (CC); [2021] 4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC) paras 32, 48–50.

National Prosecuting Authority and Others v Public Servants Association and Others [2021] ZASCA 160; 2022 (3) SA 409 (SCA); [2022] 2 BLLR 174 (SCA); [2022] 1 All SA 353 (SCA); (2022) 43 ILJ 350 (SCA).

Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA 62 (SCA); [2009] 8 BLLR 721 (SCA); [2009] 4 All SA 146 (SCA); (2009) 30 ILJ 1539 (SCA) para 28.

Legislation Cited

Superior Courts Act 10 of 2013, section 17(2)(f) (pre- and post-3 April 2024 text).

Labour Relations Act 66 of 1995, including section 157(1) on exclusive jurisdiction of the Labour Court.

Basic Conditions of Employment Act 75 of 1997.

Rules of Court Cited

No specific Rules of Court were cited by number. The court referred generally to compliance with the Supreme Court of Appeal’s procedural requirements for reconsideration referrals, including the filing of multiple copies of the leave application and the record within specified time periods set out in the referral order.

HEADNOTE

Summary

This was a reconsideration under section 17(2)(f) of the Superior Courts Act of a two-judge refusal of leave to appeal. After the Acting President referred the petition decision for reconsideration, the applicant failed to comply with the filing timelines in the referral order, causing the reconsideration to lapse. The applicant then sought condonation and reinstatement, and, if reinstated, reconsideration and variation of the original refusal of leave.

The applicant’s underlying claim sought damages for loss of income following an irregular appointment process at a public school. A special plea of lack of jurisdiction succeeded in the High Court, which refused leave. A two-judge panel of the Supreme Court of Appeal refused leave. The Acting President thereafter issued a section 17(2)(f) referral. The principal questions concerned the adequacy of the applicant’s explanation for delay, the strength of her prospects of success, and whether exceptional circumstances justified reconsideration of the refusal of leave.

The Supreme Court of Appeal found the delay explanation wanting but held that the applicant had strong prospects of success, particularly because the High Court’s jurisdictional ruling appeared to have overlooked controlling Constitutional Court and Supreme Court of Appeal authority on the relationship between the Labour Court and High Court. The court also noted potentially conflicting High Court rulings on overlapping issues as constituting an exceptional circumstance. Condonation and reinstatement were granted. The refusal of leave was varied and leave to appeal was granted to the Full Court of the Eastern Cape Division, Mthatha, with costs of condonation and reinstatement to be borne by the applicant.

Key Issues

The first issue was whether the applicant had furnished a reasonable and full explanation for her non-compliance with the time limits set in the section 17(2)(f) referral order. The applicant attributed the nine-month lapse to reliance on a correspondent attorney and the absence of communication from the Registrar, but the court found the explanation terse and unsupported by detail or corroborating affidavits.

The second issue was whether, notwithstanding an inadequate explanation for delay, the applicant demonstrated sufficiently strong prospects of success on appeal to justify condonation and reinstatement. This required an assessment of the High Court’s jurisdictional ruling against the Constitutional Court’s decision in Baloyi v Public Protector and the Supreme Court of Appeal’s decision in Makhanya v University of Zululand, both of which recognise that the High Court may adjudicate claims framed in contract or delict even where similar facts could sustain a Labour Relations Act claim.

The third issue concerned whether the matter presented the kind of “exceptional circumstances” (applicable at the time of referral) that warranted reconsideration of the petition refusal under section 17(2)(f). The court identified the presence of potentially conflicting High Court judgments on intersecting procedural and jurisdictional questions as an exceptional circumstance justifying intervention to prevent an injustice.

Held

The court held that the applicant’s explanation for the nine-month delay was inadequate. There were no dates, no description of the mode or frequency of follow-ups, and no affidavit from the correspondent attorney accounting for the delay. Standing alone, this would ordinarily defeat condonation and reinstatement.

However, the court held that the applicant had strong prospects of success, because the jurisdictional dismissal appeared to disregard binding authority establishing that the High Court’s jurisdiction depends on the nature of the claim as pleaded, and that litigants may frame claims in contract or delict that fall outside the Labour Court’s exclusive domain. The apparent tension between the High Court’s exception and special plea rulings — both addressing substantially the same jurisdictional terrain — further accentuated the prospects of success.

The court further held that the possibility of conflicting judgments by the same division on closely intertwined issues constituted an exceptional circumstance under the (then applicable) section 17(2)(f) standard, warranting reconsideration and variation of the petition refusal to prevent an injustice. Condonation was granted, the reconsideration was reinstated, and leave to appeal to the Full Court of the Eastern Cape Division, Mthatha, was granted, with costs of the condonation and reinstatement applications awarded against the applicant and costs in the appeal to follow the appeal outcome.

THE FACTS

The dispute traces back to a 13 May 2016 advertisement by the Eastern Cape Department of Education for an administration clerk at Upper Tabase Junior Secondary School. At the time, the applicant, Ms Thembakazi Ntangazana, already served in the role under the school governing body’s employ. She was not initially appointed despite her experience, and she challenged the process, exposing irregularities that ultimately led to reversal of the appointment and her placement in the position.

Following her appointment, the applicant instituted action for damages for loss of income, alleging that she was the only suitable candidate and, absent the irregularities, would have earned a salary from November 2016. The Department defended, first by exception to the particulars of claim, which was dismissed by Beneke AJ, and then by a special plea to the High Court’s jurisdiction. Majiki J upheld the special plea and dismissed the claim on 28 June 2022, holding, in substance, that the matter fell within the Labour Court’s exclusive jurisdiction.

The High Court refused leave to appeal on 15 November 2022. A two-judge panel of the Supreme Court of Appeal then refused leave on 30 March 2023. On 7 August 2023, the Acting President of the Supreme Court of Appeal referred the petition decision for reconsideration under section 17(2)(f), with directions to file the petition papers and record within set timelines. The applicant did not comply. Almost nine months later, having discovered the referral order and its directives, the applicant sought condonation and reinstatement of the reconsideration, contending that the delay was attributable to reliance on the correspondent attorney and the absence of communications from the Registrar.

THE ISSUES

A central procedural issue was whether the applicant satisfied the requirements for condonation and reinstatement after the reconsideration referral had lapsed. This implicated the familiar twofold inquiry into the explanation for delay and the prospects of success, and how courts balance these factors when they pull in opposite directions.

A substantive threshold issue was whether the applicant’s prospects of success on appeal were sufficiently strong to outweigh the inadequacy of the delay explanation. That in turn hinged on whether the High Court’s jurisdictional dismissal was sustainable in light of controlling jurisprudence on the High Court–Labour Court interface, particularly the principles articulated in Baloyi and Makhanya concerning the plaintiff’s election to sue in contract or delict, and the limits of the Labour Court’s exclusive jurisdiction.

A further issue, specific to the section 17(2)(f) framework applicable at the time of referral, was whether there were “exceptional circumstances” justifying reconsideration of the two-judge refusal of leave to appeal. The court had to determine whether the presence of potentially conflicting High Court judgments on intertwined procedural and jurisdictional points raised a risk of injustice that warranted reopening the petition outcome.

ANALYSIS

On condonation and reinstatement, the court rehearsed the established principles that a litigant must provide a reasonable, full, and candid explanation covering the entire period of delay, and that the court must consider the strength of the merits in tandem with the explanation. Citing current authority, the court reaffirmed that weak prospects of success can defeat condonation despite a full explanation, whereas strong prospects can, in appropriate cases, excuse an inadequate explanation. The applicant’s explanation fell short: it lacked dates, modes of communication, and corroborating evidence from the correspondent attorney to justify the nine-month lapse in complying with the referral order. Standing alone, such a deficiency would not justify reinstatement.

The court then emphasised that the prospects of success were strong enough to shift the balance. The High Court’s reliance on a jurisdictional special plea to dismiss the action seemingly overlooked the Constitutional Court’s decision in Baloyi v Public Protector and Others, which clarifies that the High Court’s jurisdiction turns on the pleaded cause of action and that litigants may elect to frame claims in contract or delict rather than invoking Labour Relations Act remedies. It also appears to have disregarded this court’s authoritative guidance in Makhanya v University of Zululand that if a claim, as formulated, is enforceable in a court, the plaintiff is entitled to proceed there; issues of duplication or suitability do not negate jurisdiction. Those decisions underscore that the Labour Court’s exclusive jurisdiction under section 157(1) of the Labour Relations Act does not automatically oust the High Court where the pleaded claim genuinely sounds in contract or delict.

In addition, the court identified a further concern: there were two High Court judgments by different judges of the same division addressing closely related aspects of the case — Beneke AJ’s dismissal of the exception and Majiki J’s upholding of the special plea of lack of jurisdiction — which appeared to apply the law differently, potentially generating conflicting outcomes on the same issue. Such conflict, left unaddressed, could perpetuate inconsistency and injustice. Within the section 17(2)(f) framework governing the referral at the time (i.e., “exceptional circumstances”), the court held that potential intra-division conflict on jurisdiction and pleading issues qualified as an exceptional circumstance warranting reconsideration to avert a grave failure of justice.

Having weighed the poor explanation for delay against the strong prospects of success and the presence of exceptional circumstances, the court concluded that the interests of justice required condonation and reinstatement of the reconsideration referral. Proceeding to the merits of the reconsideration, the court varied the original petition outcome by granting leave to appeal to the Full Court of the Eastern Cape Division, Mthatha, thereby ensuring that the underlying jurisdictional questions and possible conflict between High Court judgments could be fully ventilated and resolved.

REMEDY

The court granted condonation for non-compliance with the referral order’s timelines and reinstated the section 17(2)(f) reconsideration. The court did so notwithstanding the applicant’s inadequate explanation, because strong prospects of success and the risk of injustice arising from potentially conflicting High Court judgments tipped the scales in favour of intervention.

On reconsideration, the court varied the earlier two-judge refusal of leave to appeal by granting leave to the Full Court of the Eastern Cape Division, Mthatha. In doing so, the court ensured that the jurisdictional issues, including the proper application of Baloyi and Makhanya to the pleaded cause of action, would receive plenary appellate consideration in the division where the conflict had arisen.

As to costs, the court ordered the applicant to pay the costs occasioned by the condonation and reinstatement applications, including costs of counsel where employed, because the applicant sought an indulgence. The request by the respondent for the costs of two counsel was declined as unwarranted in the circumstances. The costs of the appeal were ordered to be costs in the appeal.

LEGAL PRINCIPLES

The judgment consolidates the two-pronged test for condonation and reinstatement. A litigant must provide a full, reasonable explanation for the entire delay period and demonstrate prospects of success on the merits. The court reiterated the nuanced interplay between these factors: strong merits may excuse an inadequate explanation, while poor merits may defeat condonation even where the explanation is satisfactory. This calibrated approach, grounded in recent appellate authority, is reaffirmed in the specific context of a lapsed section 17(2)(f) reconsideration.

On jurisdiction, the judgment reasserts that the High Court’s jurisdiction is determined by the pleaded cause of action. Where a plaintiff frames a claim in contract or delict, the High Court is not ousted by the Labour Court’s exclusive jurisdiction under section 157(1) of the Labour Relations Act merely because the same facts could also sustain a labour dispute. Baloyi v Public Protector and Makhanya v University of Zululand are central: they affirm a litigant’s election to plead a non-Labour Relations Act cause of action and proceed in the High Court, subject to the claim being good in law.

Finally, the decision clarifies the remedial purpose of section 17(2)(f) of the Superior Courts Act. Even under the pre-amendment “exceptional circumstances” threshold applicable to this referral, the court recognised that potential conflict between judgments on overlapping issues within the same division may constitute such circumstances, justifying reconsideration to avert injustice. The court’s articulation of section 17(2)(f) as a mechanism that “keeps the door of justice ajar” resonates with both the pre- and post-amendment formulations, underscoring its role as a narrow but vital corrective jurisdiction to maintain the integrity of appellate decision-making.