THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 71/23
In the matter between:
ASPEN HOLDINGS PTY LTD First Appellant
STEPHAN SAAD Second Appellant
MOTEBANG PHELANE First Respondent
ALEXAND ER FORBES GROUP HOLDINGS LTD Second Respondent
Heard: 14 November 2024
Delivered: 23 January 2025.
Coram: Molahlehi AJP, Musi AJA and Mooki AJA
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JUDGMENT
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MOLAHLEHI , AJP
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Introduction
[1] This is an appeal against the Labour Court's judgement and order granting
condonation for the first respondent ’s ( Memployee) late filing of his statement of the
case .
[2] In the statement of the case, the employee alleges that his dismissal by the
appellant was automatically unfair , as contemplated in section 187 (1) of the Labour
Relations Act1 (LRA). Before his dismissal, he was employed as a group operations
quality auditor. Leave to appeal was granted to this Court on petition.
Background
[3] The employee was dismissed in December 2020 for misconduct related to hi s
failure to attend his disciplinary hearin g. The dismissal was referred to the CCMA as
an automatically unfair discrimination dispute based on culture and religion. It is
apparent that before his dismissal , the employee had launched a grievance about
the treatment he received from the appellant in 2017, which is related to the
allegations of victimisation , discrimination and harassment by his line manager. The
alleged incidents relati ng to how he was harassed and unfairly treated are set out in
his founding affidavit , and these include, among others, the allegation that he was
denied training opportunities and development exposure. The other complain t is that
the appellant failed to investigate and assist the employee with his ill health
challenges. According to him, his poor health condition w as triggered by the need for
him to attend the cultural and traditional spiritual processes of “Intwaso”.2 He needed
to leave work to participate in these cultural and traditional rituals.
[4] The employee received the certificate of non -resolution of the alleged unfair
dismissal dispute from the CCMA on 6 January 2021. He filed the statement of case
with the Labour Court on 18 May 202 1.
1 Act 66 of 1995, as amended. Section 187 makes provision for the various grounds upon which a
dismissal may be classified as automatically unfair in regard to alleged unfair discrimination, including
discrimination on the basis of religion, conscience, belief, and culture.
2 In describing what constitutes “ Intwaso ,” the employee states in a footnote in his statement of case
that “Intwaso” is a seriously debilitating illness with severe physical symptoms, unusual dreams or
walking visions indicating that a person is being called to undergo initiation as a spiritual healer. The
sufferer accepts the call and undergoes training to emerge as a healer . If they do not, the illness is
unlikely to be cured. They may even die.
3
[5] The appellant did not file a statement of opposition but took exception to the
statement of case based on the complaint that the referral was filed outside the
prescribed timeframe set out in the LRA. In other words, the statement of case was
not properly before the Labour Court. The employee did not oppose the exception
but responded by applying for condonation.
Condonation application
[6] In his founding affidavit before the Labour Court, the employee states that the
late filing of the statement of case was due to the erroneous advice he received from
his Counsel. According to him, Counsel advised him that the statement of case had
to be filed with the Labour Court within 90 days from the date the certificate of non-
resolution was issued . He states further that he became aware that the advice was
incorrect when the appellant raise d the point in limine concerning the late filing of the
statem ent of c ase.
[7] It is common cause that the employee was 41 days late in filing his statement
of case as required by the LRA. He contended that this period was not excessive . It
is also not in dispute that th e employee did not file his condonation application soon
after he became aware that he was late with his statement of case.
[8] The e mployee contended before the Labour Court that:
i. He had a reasonable prospect of success in the main case because his
dismissal involved an alleged automatic ally unfair dismissal based on the
grounds of cultural and religious belief ;
ii. It would be in the public interest that his claim should proceed to trial
despite the non -compliance with the timeframes set out in the LRA ; and
iii. The appellant would not suffer prejudice if condonation was t o be granted
by the Labour Court.
In the Labour Court
[9] The Labour Court found, based on the provisions of section 191 (11)( a) of the
LRA, that the employee was 41 days late in filing his statement of case. It further
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found that the p eriod of 41 delays was not too excessive and “ there was no mala fide
shown by the applicant or his legal representative ” concerning the delay. It also
found that the employee’s explanation was poor but "cannot be an absolute bar from
granting condonation ”.
[10] The other reason for granting condonation was that the Labour Court found
that the appellant had good prospects of success in the main case because his claim
is “that he endured consistent harassment, discrimination and victimisation after he
attended to the cultural ceremonies and his calling to ‘ukuthwasa ’”.3
[11] In concluding that the employee had good prospects of success, the Labour
Court considered that the appellant failed to file the statement of defence but instead
raised a point in limine regarding the delay in filing the statement of the case. In this
regard , the Court held that:
“In the absence of the statement of d efence the applicant has shown that prima facie ,
he has prospects of success . Besides, there is a dispute of fact, which needs to be
ventilated in a trial. As such, there is no merit in the respondent's submission relating
to the prospects of success. In my view, the applicant has made out a case for why
condonation application should be granted. ”
Before this Court
[12] The appellant contended that the employee failed to provide an acceptable
and reasonable explanation for his delay or demonstrate circumstances permitting
him to escape the consequence of his representative ’s negligence. It was further
submitted that the prospects of success were irrelevant without a reasonable and
acceptable explanation.
[13] It was contended on behalf of the employee that the judgement of the Labour
Court was correct and that in instituting these proceedings , the appellant was
seeking to avoid adjudication of the dispute in the light of the constitutional violation.
The principles governing condonation
3 “Ukuthwasa” is defined as meaning "come out" or "be reborn" and signifies the transformative nature
of an individual experience where b oth men and women are ‘called’ to become traditional healers.
5
[14] In terms of section 191 (11)(a) of the LRA , a referral of a dispute of the nature
of this matter must be referred to the Labour Court for adjudication within 90 days
after the CCMA has certified that the dispute remains unresolved. The Labour Court
may, however, condone non -observance of that timeframe on good cause shown.
The onus of showing the existence of good cause in a cond onation application rests
with the applicant, and this essentially entails satisfying the two well -established
requirements, namely: (a) providing a satisfactory explanation for the delay and (b)
showing the prospect of succe ss in the main case. In other words , regarding the
onus, the applicant bears the burden of showing good cause .4 A mere allegation of
good cause will not be sufficient to assist the Court in exercising its discretion
whether to grant condonation or not . In other words , as stated in Standard General
Insurance Co L td v Eversafe (Pty) L td and Others5, the applicant must “ at least ,
furnish an explanation of his default sufficiently full to enable the court to understand
how it really came about and to assess his conduct and motives . … Where there has
been a long delay , the court should require the party in default to satisfy the court
that the relief sought should be granted ”.
[15] As indicated above, the applicant must also show that prospects of success
exist in the main claim. The applicant has to satisfy the requirements of good cause
by making out the case in the founding affidavit supporting the condonation
application.
[16] It is trite that in considering an application for condonation , the Labour C ourt
exercises a discretion described as “wide discretion” or “ discretion loosely so -called ”.
The discretion has to be exercised judicially premised on all the relevant factors.
Thus , as a general principle, the L abour Appeal Court (LAC) would not be entitled to
interfere with the exercise of discretion by the Labour Court solely on the basis that it
does not agree with the decision reached by the Labour Court. It is , however, entitled
to interfere with the decision where it has been shown that the Labour Court failed to
exercise its discretion judicially.6
4 Nature’s Choice Products (Pty) Ltd v Food and Allied Workers Union and Others [2014] ZALAC 12;
[2014] 5 BLLR 434 (LAC) at para 19.
5 2000 (3) SA 87 (W) at para 12 .
6 National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and
Others [1999] ZACC 17 ; 2000 (2) SA 1 (CC) at para 11.
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[17] As indicated above , the Labour Court exercise d its discretionary power to
grant condonation for the late filing of the employee’s statement of case . Accordingly ,
the test to apply on appeal by this Court is whether the Labour Court, in exercising
such powers, acted capriciously, upon wrong principles, in a biased manner, for
insubstantial reasons, or committed a misdirection, or an irregularity or exercised its
discretion improperly or unfairly.7
[18] The approach to adopt in determining whether good cause has been
demonstrated to justify the granting of cond onation entails consideration of all the
relevant factors, amongst those being the degree of the delay , the explanation o r the
cause of the delay, the prospect of success and the importance of the case,
prejudice to the other party or parties and the impact on the administration of
justice.8 It has repeatedly been stated that these factors must not be considered in
isolation. The overriding consideration in an application for condonation is the
interest s of justice, as stated by the Constitutional Court in Grootboom v National
Prosecuting Authority and Another9 (Grootboom ).
[19] In order to excuse the applicant’s delay, the Court has to be convinced that
the explanation is reasonable and acceptable. In this regard , the applicant must
provide an explanation covering all the aspects related to the delay, including the
period of any delay after becoming aware of the need to apply for condonation.10 In
Van Wyk v Unitas Hospital and Another11, the Constitutional Court held that:
“An applicant for condonation must give a full explanation for the delay. In addition, the
explanation must cover the entire period of delay. And, what is more, the expla nation
given must be reasonable .”
[20] The other well-established principle governing an application for condonation
is that condonation may be refused without a reasonable and acceptable explanation
for the delay , irrespective of good prospects of success. This was confirmed in Colett
7 See: Coat es Brothers L td v Shanker and Others [2003] ZALAC 12; (2003) 24 ILJ 2284 (LAC) at para
5.
8 Van Wyk v United Hospitals and Another [2007] ZACC 24; 2008 (4) BCLR 442 (CC) ( Van Wyk ).
9 [2013] ZACC 37; 2014 (2) SA 68 (Grootboom ).
10 See Librapac CC v FEDCRAW and Others (JA49/98) [1999] ZALAC 6 (11 March 1999) . See also:
SA Broadcasting Corporation Ltd v Commission for Conciliation and Arbitration and Others [2009]
ZALAC 13; (2010) 31 ILJ 592 (LAC) .
11 Van Wyk supra at para 22.
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v Commission for Conciliation , Mediation and Arbitration and others12, where the
LAC held that:
“There are overwhelming precedents in this Court, the Supreme Court of
Appeal and the Constitutional Court for the proposition that where there is a
flagrant or gross failure to comply with the rules of court condonation may be
refused without considering the prospects of success. In NUM v Council for
Mineral Technology it was pointed out that in considering whether good cause
has been shown the well -known approach adopted in Melane v Santam
Insurance Co Ltd 1962(4) SA 531(A) at 532(C -D) should be followed but –
‘(t)here is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay, the prospects of
success are immaterial, and without good prospects of success, no
matter how good the explanation for the delay, an application for
condonation should be refused. ”
[21] I agree with the appellant that the Labour Court , in exercising its discretion of
condoning the employee's late referral of the dispute, did so upon wrong principles ,
for insubstantial reasons and committed a misdirection. The judgement's reading
makes it apparent that the Labour Court considered one aspect of the delay – the 41
days from the date the CCMA issued the certificate of non -resolution of the dispute.
While the explanation was poor, it was concluded that the employee had made a
case for condonation because he had prospects of success in the main case.
[22] It is not in dispute that the CCMA issued the certificate of non -resolution of the
dispute referred to it in terms of section 187 (1) of the L RA on 6 January 2021, and
the employee filed his statement of case on 18 May 2021. The explanation for the
41-day delay is set out by the employee in his affidavit in support of the condonation
application as follows:
“19. It is on the basis of the aforesaid, I submit , therefore, that a period of 41 days is
not excessively late. The reasons for my being late are that I entirely relied on the
advice of my counsel from Pro bono legal services.
12 [2014] ZALAC 1; (2014) 35 ILJ 1948 (LAC) at para 38.
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20. My then counsel indicated that we have 90 court days to file the statement of
case, it was only when the first respondent raised a point in limine about condonation
that we revisited the rules to realise that we have committed a grave oversight .”
[23] The facts before the Labour Court show the employee needed to explain two
delay periods . The first is the 41 days from issuing the certificate of non -resolution of
the dispute to when the appellant raised the exception. The second period is from
the date the employee became aware of the need to file the condonation application
(being the date of the exception) to the date the condonation was filed – the 36 -day
delay.
[24] The reading of the judgment reveals that the Labour Court, in exercising its
discretion to condone the employee's late filing of the statement of case , considered
only the explanation for the first period of the delay and ignored that there was no
explanation for the second period. Based on the principles set out earlier in this
judgment, the failure to explain the further delay after the applicant became aware of
the need to apply for condonation is fatal. The failure by the Labour Court to take this
into account renders the decision to grant condonation for the late filing of the
employee’s statement of case improper. This Court is accordingly justified in
interfering with the judgment and the order of the Labour Court, and thus, this appeal
stands to succeed on this ground alone .
[25] In addition to the above, the appeal would still stand to succeed as the Labour
Court misdirected itself in dealing with the employee's liability concerning the alleged
lack of diligence by his legal representatives. The test is not whether the legal
representative acted mala fide s or intentionally in delaying prosecution of the
dispute , thereby not ensuring that the dispute was timeously referred to the CCMA.
The test is whether the legal representative ’s failure to correctly advise the employee
on the time frame for filing the statement of case was negligent. The incident of the
Counsel’s failure to check and confirm the legal time frame for filing the statement of
case reveals negligence or incompetence. In the circumstances of this case and
following the authorities referred to below, the Labour Court ought not to have
excused the employee from his representatives’ negligence.
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[26] In A Hardrodt (SA) (Pty) Ltd v Behardien and Others ,13 this Court held that:
“The catalogue of events reveals negligence, incompetence and gross
dilatoriness by the appellant's legal representatives. It is difficult to see how
that constitutes a good cause for condonation with convincing reasons as laid
down in the Queenstown Fuel Distribu tors CC case. ”
[27] In Superb Meat Supplies CC v Maritz,14 this Court held as follows:
“It has never been the law that invariably a litigant will be excused if the
blame lies with the attorney. To hold otherwise might have a disastrous effect
upon the observance of the rules of this court and set a dangerous precedent.
It would invite or encourage laxi ty on the part of practitioners .”
[28] It is also important to note that the employee did not make out a case that he
ought to be exonerated from the negligence of his Counsel . In his affidavit supporting
the condonation application, he does not identify the pro bono Counsel who gave
him the incorrect advice. Furthermore, there is no confirmatory affidavit supporting
this allegation from his attorneys of record or any other person.
[29] Turning to the issue of prospects of success , which is the core issue upon
which the Labour Court based its decision in granting condonation, I do not believe
that the employee made out a case in that regard. In this case, considering the
principle discussed earlier, I believe the Labour Court erred in considering the
prospects of success when the employee failed to provide a reasonable and
acceptable explanation for the delay . In NUMSA and another v Hillside Aluminium ,15
the Labour Court held that an unsatisfactory explanation for any delay would
generally be fatal to an application, irrespective of the applicant’s prospects of
success. This was stated in the following terms by the Constitutional Court in
Groot boom:16
“The interests of justice must be determined with reference to all relevant
factors. However, some of the factors may justifiably be left out of
consideration in certain circumstances. For example, where the delay is
13 (2002) 23 ILJ 1229 (LAC) at para 4.
14 (2004) 25 ILJ 96 (LAC) at para 16.
15 [2005] ZALC 25; [ 2005] 6 BLLR 601 (LC) at para 6 .
16 Groot boom supra at para 36.
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unacceptably excessive and there is no explanation for the delay, there may
be no need to cons ider the prospects of success. ”17
[30] In my view, the condonation application ought to have failed even if prospects
of success were to be considered. In his application for condonation , the employee
makes a bold statement that his claim relates to an “ automatically unfair labour
practice for reasons of discrimination based on cultural and religious believes (sic)”.
He further states that:
“a. It is not only on the basis of such intrusion of a constitutional right that I
have prospects of success, but also on the basis of public interest. In a
constitutional democracy like ours, it is not only fair that matters relating to
cultural and religious believes (sic) are attended by courts for purposes of
affirming our cultural diversities, but also to a ffirm constitutional supremacy. ”
[31] On a reading of the judgment, it is clear that t he court a quo erroneously
based its assessment of the prospects of success on the contents of the employee’s
stated case , which was neither pleaded by the employee in his affidavit in support of
his condonation application nor was it attached ther eto. It is important to note that
the Labour Court considered the statement of case without the statement of
response from the appellant in the circumstances where the appellant was not in
default of filing the same .
Conclusion
[32] The refusal to condone the late filing of the statement of case will result in the
employee being denied the opportunity to pursue his dismissal dispute before the
Labour Court. It, however, is evident that the employee has not pursued this matter
diligently and tendered no reasonable explanation as to the delay and, more
importantly, why he did not file the condonation application , for the entire period, as
soon as he became aware of the need to apply for condonation. On this basis, the
appeal stands to succeed.
Order
1. The appeal is upheld.
17 Ibid at para 51.
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2. The order of the Labour Court is set aside and substituted with the following
order:
“1. Condonation for the late filing of the employee’s statement of case is
refused , with no order as to costs .
3. There is no order as to costs.
Molahlehi AJP
Musi AJA and Mooki AJA concur.
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APPEARANCES:
For the Appellants : Adv L. Ellis. , instructed by Kirchmann’s Incorporated
For the Respondents : Adv M.R. Maphutha , instructed by Thyne Jacobs
Attorneys