THE LABOUR COURT OF SOUTH AFRICA , GQEBERHA
Not Reportable
Case No: PR 265/22
In the matter between:
PREMIER, EASTERN CAPE PROVINCE First Applicant
DIRECTOR GENERAL: OFFICE OF THE PREMIER Second Applicant
and
SONWABO MBANANGA Respondent
Heard: In Chambers
Delivered: 4 April 2025
JUDGMENT :
CONDONATION AND APPLICATION FOR LEAVE T O APPEAL
MAKHURA , J
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[1] The respondent applies for leave to appeal the whole of the judgment and order
handed down by this Court on 28 May 2024. Simultaneously, the respondent applies for
condonation for the late delivery of the application.
[2] It is not in dispute that the judgment was sent to the respondent’s attorneys of
record only on 15 October 2024, f our and half months after the date of judgment and
after it was sent to the applicants’ attorneys of record. The Court has since establish ed
that the email address used to send the judgment to the respondent’s attorneys of record was incorrect , which meant that the judgment did not reach the respondent ’s
attorneys on 28 May 2024. Therefore, the date of receipt of the judgment is 15 October
2024, when the judgment was sent t o the respondent’s attorneys by the applicants and
the 15- day period to apply for leave to appeal expired on 5 November 2024.
[3] The application for leave to appeal, though dated 8 January 2025, was filed on
31 January 2025. The delay is calculated from 6 November 2024 to 15 December 2024
and 15 January 2025 to 31 January 2025. This is a period of more than seven weeks.
Whilst the delay is substantial, it is not excessive. I have considered the application and
the opposition and considering primarily the length of delay , I am of the view that it is in
the interest of justice to grant the application for condonation.
[4] Applications for leave to appeal are regulated in terms of section 17 of the
Superior Court Act.
1 I have considered the grounds upon which the respondent seeks
leave to appeal. The main judgment has addressed in detail the delay in bringing the review application, the reasons for declaring the impugned decision irregular, irrational
and unlawful, and the reasons for reviewing and setting it aside. The Court also
addressed the issue of the remedy.
1 Act 10 of 2013. Section 17(1) provides that: “ Leave to appeal may only be given where the judge or
judges concerned are of the opinion that –
(a) (i) the appeal would have a reasonable prospect of success; or
(ii) there is some other compelling reason why the appeal should be heard, including
conflicting judgments on the matter under consideration…”
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[5] The only ‘new’ issue raised by the respondent is his reliance on two judgments of
this Court penned by Meyerowitz AJ in Premier , Eastern Cape Province & another v
Tikayo2 (Tikayo) and Nxumalo & others v Gauteng Department of Sports, Arts, Culture
& Recreation & another3 (Nxumalo). In both matters, the learned acting judge stated
that the state is a juristic person with a ‘directing mind’4. Relying on these judgments,
the respondent contends that the applicants must be held to have had knowledge of the
unlawful act from its inception. That is, the former Premier and his Director General at
the time had knowledge of the unlawful decision and should have brought the
application within a reasonable period of taking such a decision.
[6] The Court made a value judgment on the issue of the delay and considered the
facts as pleaded in the application . Paragraph 20 of the main judgment stat es:
‘The application was then launched in November 2022, five and half years since
the decision. The applicants have in my view adequately explained when they
became aware of the impugned decision, how they became aware of it and that upon becoming aw are, they acted with reasonable urgency. It took the applicants
from July 2022 when they became aware of the impugned decision to November
2022 to file this application. Whilst the delay since the decision was taken may be
over 5 years, it would be disingenuous to expect that the former Premier , who
approved the decision which is the subject matter of these proceedings, would have applied to set aside the impugned decision . The circumstances that brought
this issue to light is the review of the organisational structure. There are no facts to suggest that the incumbent applicants should have been aware of the alleged
irregularity or unlawfulness shortly after their appointment to their respective
positions or any time prior to July 2022. ’
[7] The Court then held that there was no undue or unreasonable delay and that
even if there was, the delay should be overlook ed when considering :
2 [2024] ZALCPE 47; (2025) 46 ILJ 628 (LC) at para 28.
3 [2024] ZALCJHB 327; (2024) 45 ILJ 2778 (LC) .
4 Tikayo at para 28; Nxumalo at para 33.
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‘the importance and necessity to address and correct where necessary the
unlawfulness, the protection and promotion of the rule of law, the nature of the
impugned decision, the prospects of success fully declaring the impugned
decision unlawful , and the consequences of setting or not setting the impugned
aside consequent to the declaration of unlawfulness .’
[8] It is clear from the above that the main judgment considered the delay from the
date of the decision. Those who made the unlawful decision were happy with the
decision and had continued with the illegality. However, the applicants did not and took
legal steps to undo the unlawful action, which must be commended and not
condemned, particularly considering that they acted within a reasonable time after they became aware of the unlawful decision. To expect that the former Premier and his DG
to have brought the legality challenge against their decision when they were the ones
who took the unlawful decision would be untenable because they either did not see any
wrong with their decision or they had knowledge that their decision was wrong but were happy to continue with it regardless .
[9] In my view, the two judgments are of no assistance to the respondent’s case.
They do not raise any conflicting legal position. The applicants have already started
implementing the judgment by reversing the respondent’s salary in accordance with the
judgment. The appeal would have no prospects of success , and there are no compelling
reasons for it to be heard. The application must fail.
[10] In the premises, the following order is made:
Order
1. The late delivery of the application for leave to appeal is condoned.
2. The application for leave to appeal is dismissed.
M. Makhura
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Judge of the Labour Court of South Africa