THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 520/23
In the matter between:
NUMSA obo MEMBERS AS PER ANNEXURE “A” Applicant
and
MACSTEEL SERVICE CENTRES SOUTH AFRICA PROPRIETARY LIMITED Respondent
Heard: 28 February 2025
Delivered: 05 March 2025
This judgment was handed down electronically by consent of the parties’
representatives by circulation to them via email. The date for hand- down is deemed
to be 05 March 2025.
JUDGMENT
ORR, AJ
2
[1] The respondent in this matter (Macsteel) seeks to rescind my order granting
the applicant (NUMSA) leave to appeal against my Judgement in which I refused
condonation to NUMSA for the late delivery of their Statement of Case.
Background
[2] In order to understand the various issues dealt with in this judgement I need
to recap the history of the litigation in this matter very briefly .
[3] NUMSA, acting on behalf of its members dismissed by Macs teel, referred an
unfair dismissal dispute to this Court for adjudication. The Statement of Case should have been delivered to this Court by 27 July 2023 but was only delivered on 13
September 2023, 48 days late.
[4] The condonation application came before me. It became apparent that
NUMSA had originally understood that their members had been dismissed for participation in an unprotected strike. For reasons that were not addressed at all in the condonation application this view changed at some stage to a view that the
members had been dismissed for misconduct and that the dispute should be
arbitrated by the Metal and Engineering Industries Bargaining Council (MEIBC). NUMSA continued to hold this view even after Macsteel had successfully challenged
the jurisdiction of the MEIBC and obtained a ruling that the matter should be referred
to this Court for adjudication.
[5] All of these incidents took place prior to 27 July 2023, the date on which
delivery of the Statement of Case should have taken place. On 27 July 2023 attorneys were instructed to draft the Statement of Case which, following a change in attorneys, was eventually delivered on 13 September 2023.
[6] In refusing condonation, I found that the period post 27 July 2023 was
adequately explained. I found that , given the primary cause for the delay was the
change in views of NUMSA for the reasons for the dismissal , this needed to be
explained as well as , absent this change of views, the matter would have been
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referred timeously. Essenti ally because no explanation at all was provided for this
change of view, condonation was refused.
[7] NUMSA sought leave to appeal. One of the grounds on which leave was
sought was that my having regard to the period prior to 27 July 2023, and the lack of
explanation for that period, amounted to a legally impermissible exercise of my discretion.
[8] At the time I considered the application for leave to appeal only NUMSA’s
submissions were before me. In these submissions the point was made that:
“The Learned Judge accordingly misdirected himself in the exercise of his
discretion by finding that the applicant provided an adequate explanation for the period of delay relevant to the determination of the application and in
dismissing the application based on a consideration of the conduct of the applicant where the statement of claim was not yet due.”
[9] The decision to grant leave was based solely on this issue. I noted that there
was no Labour or Labour Appeal Court (LAC) authority dealing with a need for an
applicant for condonation to provide an explanation for events prior to the expiry of the 90 day period, when those events effectively caused the Statement of Claim to be delivered after the 90 period. Although I was unpersuaded that I had erred in my approach, I was of the view that the fact that the LAC may hold a different view to mine was a compel ling reason to grant leave to appeal. Although I did not specifically
refer to a compelling reason in my judgement granting leave, I was of the view that
the issue was an important one and my judgement should not be the only one on the
matter.
[10] Subsequent to the granting of leave it emerged that Macsteel had filed
submission s opposing the granting of leave but for various reasons these
submissions had not come to my attention. This application for rescission followed.
The Rescission Application
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[11] At the hearing of this matter I indicated to the parties that it seemed to me the
crucial aspect was whether Macsteel’s submissions on leave would be such as to
shift my original views in granting leave. It seemed to me to be of little purpose to decide the rescission in isolation, rescind my ruling, consider Macsteel submissions and possibly still come to a decision to grant leave, particularly given that the LAC has already requested the parties to submit heads. I accordingly proposed to the parties that they address me on the leave to appeal itself. If I was persuaded by Macsteel that leave should not have been granted, I would rescind my earlier ruling
and replace it with a ruling to that effect. If not, my original ruling would stand. Both
parties were willing to proceed on that basis.
[12] As I understood Macsteel’s submissions, they contended that leave to appeal
should not have been granted as :
[13] In their application for leave to appeal NUMSA had confined their grounds for
appeal to those contemplated in section 17(1)(a)(i) of the Superior Courts Act
1, being
reasonable prospects of success, and therefore excluded grounds contemplated in
section 17(1)(a)(ii), being compelling reasons. I was accordingly confined solely to
the issue of whether there were reasonable prospects that the LAC would come to a different conclusion on the merits and could not have regard to the issue of
compelling reasons to grant leave to appeal;
[14] In the case of Matoto v Free State Gambling and Liquor Authority and
Others
2, the Supreme Court of Appeal had already addressed the question of the
obligation to provide explanations for the period prior to the expiry of a statutory time
period albeit in the context of the Promotion of Administrative Justice Act3 (PAJA)
rather than the Labour Relations Act4 (LRA) . Therefore, there could be no compelling
reasons for the LAC to consider the matter as it had already been addressed by appellate authority.
1 No. 10 of 2013.
2 [2018] ZASCA 110
3 No. 3 of 2000.
4 No. 66 of 1995.
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[15] In support of the first point, I was referred to Selota and others v YG Property
Investments (Pty) Ltd (Leave to Appeal)5. However , Selota states no more than that
a party is confined to the grounds of appeal articulated in a notice and may not raise
additional grounds in argument. NUMSA’s notice of appeal squarely raises the issue
that I exercised my discretion wrongly in having regard to the period prior to 27 July
2023.
[16] Selota does not state that a party is obliged, in its Notice of Appeal to indicate
whether grounds are confined to “ reasonable prospects ” and/or “ compelling
reasons ”. I agree with the submission made by Mr Groenewald for NUMSA that
these two will in most cases considerably overlap. It seems to me that it would be unduly mechanistic to require a party in its notice to indicate whether a ground of
appeal falls with section 17(1)(a)(i) or 17(1)(a)(ii) or both. I therefore do not accept
Macsteel’s submission in this regard.
[17] I am also of the view that Matoto is distinguishable from the matter before me.
The point is made in Matoto
6 that a review, whether in terms of PAJA or not , must
always be brought within a reasonable time, so that even a review brought within the
180 day time period might require explanation:
“In this regard it is important to emphasise that s 7(1) does impose an
obligation on an aggrieved party to institute proceedings for judicial review
without unreasonable delay. Thus, whilst the launch of an application for review after the 180 days is unreasonable per se, the converse does not necessarily hold true. In other words, the launch of an application within 180 days is not reasonable per se. ”
[18] It is in that context that the SCA found that an application for extension for the
180 day time period, as provided for in PAJA, must adequately explain what has
been done prior to the period expiring. No such considerations apply in terms of a
referral to the Labour Court. Provided it is done within the 90- day time period there
can never be any obligation on a litigant to explain what was done during that period.
5 [2023] JOL 58040 (GJ)
6 Id fn 2 at para 9.
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At the very best for Macsteel , Matoto may be of some persuasive value that the
approach I adopted in refusing condonation was a correct exercise of my discretion.
It cannot possibly be dispositive of the matter.
[19] I therefore conclude that, even if Macsteel’s submissions had been before me
when I originally granted leave to appeal, I would have come to the same conclusion,
namely , that there were compelling reasons to grant leave to appeal. In those
circumstances there is no point in rescinding the earlier order. Neither party pressed the issue of costs with any conviction. I am satisfied that there are no special circumstances which warrant the granting of costs in this matter .
[20] In the premise the following order is made:
Order
1. The application for rescission is dismissed.
2. There is no order as to costs.
C. Orr
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. D. Groenewald
Instructed by : Serfontein Viljoen Swart
For the Respondent : Adv. P Moll
Instructed by : Webber Wentzel