THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JA155/23
In the matter between:
SACCAWU OBO FREDDIE LETSOALO
AND MASTER PHUTI Appellant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER HO RWITZ N.O. Second Respondent
BID FOOD SERVICES Third Respondent
Heard: 28 November 2024
Delivered: 30 January 2024
Coram: Van Niekerk JA , Nkutha- Nkontwana JA et Mooki AJA
JUDGMENT
2
NKUTHA -NKONTWANA , JA
Introduction
[1] The appellant , a trade union, launched this appeal on behalf of its members,
Messrs Freddie Letsoalo (Mr Letsoalo) and Master Phuti (Mr Phuti) challenging the
judgment and the order of the Labour Court which was delivered on April 2023
dismissing its condonation application for the late filing of their review application.
[2] The first hurdle confronting the appellant in these proceedings is that the
notice of appeal was delivered outside of the 15- day time limit in terms of Rule 5 (1)
of the Rules of this Court
1 (Rules) . The second hurdle to overcome is that the appeal
is deemed withdrawn in terms of Rule 5(17) due to the late filing of the record of
appeal . The appellant has sought condonation for the late filing of the notice of
appeal and the reinstatement of its appeal by way of a reinstatement application. The third respondent opposes both applications and the appeal. Further, the third respondent seek s condonation for the late filing of its answering affidavit opposing
the appellant's condonation applications .
[3] Accordingly, this Court is required to decide, in limine , whether to condone the
late delivery of the respondent's notice of appeal; whether to reinstate the appeal;
and whether to condone the late filing of the third respondent’s opposing affidavit. I
deal first with the preliminary points .
Preliminary points
[4] The third respondent seeks condonation for the late filing of its answering
affidavit . It contends that it only became aware of the notice of appeal when it was
served with the record of appeal on 3 June 2024. The appellant did not persist with its opposition. The explanation is acceptable and thus condonation is granted.
1 GN 1666 of 14 October 1996: Rules for the Conduct of Proceedings in the Labour Appeal Court
(repealed, 17 July 2024 ).
3
[5] The appellant, likewise, seeks condonation of the late filing of the notice of
appeal by 24 days . The delay is attributed to the appellant's dispute with its erstwhile
attorneys which led to the termination of their instructions. No further details are
provided as to what transpired between 24 October 2023 and 15 November 2023.
What w e are told, though, is that the appellant’s attorneys of record took over the
matter on 15 November 2023 and duly advised the appellant that the notice of
appeal was out of time.
[6] Still, there was no sense of urgency in the prosecution of the appeal as the
notice of appeal was only filed on 12 December 2023. The appellant attributes the delay between 15 November and 12 December 2023 to the hardship it had experienced in securing the file and record that served before the Labour Court. We are left to speculate on the type of hardship and the actual steps taken to attend to that challenge. The third respondent is correct in its contention that the appellant
could have obviated further delay by duplicating the Labour Court file.
[7] Even so, per Rule 5(8) , the appellant ought to have filed the appeal record
within 60 days of the date of the order granting leave to appeal , being 24 October
2023. The record was delivered on 13 May 2024, 58 days late. The appellant
contends that it was awaiting the order reinstating the appeal before it could file the record of appeal. It became aware that the record had to be filed when it received a
directive from the Registrar of this Court.
[8] The appellant's plea of ignorance of the Rules is untenable. The appellant is a
renowned trade union and enjoyed the support of attorneys throughout this litigation. To my mind, the explanation proffered is not only irrational but seeks to make light of
the appellant’s conduct that is at odds with one of the dictates of the Labour
Relations Act
2 (LRA) that labour disputes be expeditiously prosecuted. Truth be told,
the appellant's overall conduct in this litigation is marked by flagrant disregard for the period prescribed in the LRA and the Rules and deserves censure.
2 Act 66 of 1995, as amended.
4
[9] Notwithstanding, I deem it expedient to grant condonation for the late filing of
the notice of appeal and to reinstate the lapsed appeal because the delay is not
egregious and it is in the interest of justice that the appeal be disposed of on the
merits .
Background
[10] The appellant instituted a review application to set aside and review the
arbitration award issued by the second respondent on 15 May 2017 in which the dismissal of Messrs Letsoalo Phuti was found to be substantively and procedurally fair. The review application was delivered on 28 August 2019, outside the prescribed period in section 145(1)(a) of the LRA
3, and accompanied by a condonation
application.4
[11] The delay was 791 days , or more than two years. The blame for the delay is
attributed to the appellant’s internal ordeals; in essence, the abandonment of the union official who was allocated the matter and the highly contested election of Regional Leadership during a Special Congress Staff on 21 July 2019 where Mr
Mavuso emerged as the Regional Secretary. Mr Mavuso appeared on behalf of
Messrs Letsoalo and Phuti at the CCMA, h owever, it was his evidence that he had
handed over the matter to the Regional Office and was never apprised of the further processes. Even when he, Mr Mavuso , took over as the Regional Secretary, he was
never made aware of this matter. Apparently, t he matter came to light on 12 August
2019 when Messrs Letsoalo and Phuti visited the appellant’s offices .
[12] The Labour Court found the delay egregious and the explanation inadequate
and unreasonable. Moreover, it opined that Messrs Letsoalo and Phuti showed no
interest in the matter as they visited the appellant’s offices for the first time on 12
3 Section 145(1)(a) provides:
‘(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices
of the Commission may apply to the Labour Court for an order setting aside the arbitration
award –
(a) within six weeks of the date that the award was served on the applicant …’ [Own emphasis ]
4 Section 145(1A) – provides that the Labour Court may , on good cause shown, condone the late filing
of an application in terms of subsection (1).
5
August 2019, two years after the sitting of the arbitration and delivery of the
arbitration award.
[13] Still, the Labour Court considered the prospects of success. Mr Letsoalo was
employed as a delivery driver , while Mr Phuti was a delivery assistant. They were
dismissed on 20 September 2016 for gross negligence and dereliction of duty. The charges stemmed from the incident of 18 August 2016 in which they failed to ensure that the R293.50 they had collected was duly dropped into the drop- safe at the end
of their shift per the policy. [14] Messrs Letsoalo and Phuti conceded that they were aware of the drop- safe
policy and that failure to comply was a dismissible offence which had been executed in similar cases before. However, their defence was that they committed an honest mistake by failing to drop the cash on the day it was collected. It was o nly when Mr
Phuti was confronted by the third respondent on 26 August 2016 that the outstanding amount was found inside the truck’s cubbyhole. The third respondent's evidence was that failure to compl y with the drop- safe policy amounted to gross misconduct . It was
adamant that a sanction of dismissal was warranted because of the nature of its
business. The drivers and their assistants were entrusted with the appellant’s cash
and had to act accountably.
[15] The commissioner found that the dismissal was procedurally and
substantively fair as deviation from the policy in the context of the third respondent’s
business operations was inexcusable and that a stern warning had to be sent as a deterrent to other drivers. The Labour Court held a different view as it was convinced that Messrs Letsoalo and Phuti had made an honest mistake. As such, the appellant had good prospects of success.
[16] Notwithstanding, the Labour Court refused condonation and remarked as
follows:
‘[53] However, without an adequate and reasonable explanation for the
delay, the prospects of success are immaterial. [54] All the other factors such as the extent of the delay which is egregious,
the prejudice to the third respondent, which in these circumstances outweighs
6
the prejudice to the applicant and their members, and importantly, the
interests of justice weigh against condonation being granted. In particular, the interests of justice cannot, in these circumstances get the applicant past the hurdle of its inadequate and unreasonable explanation for the extreme delay.
[55] The applicant's failure to diligently prosecute the review application and
its failure to explain the delay with the requisite detail expected has unfortunately resulted in my judicial discretion being exercised against the applicant, and consequently Mr Letsoalo and Mr Phuti by refusing condonation.’
[17] Accordingly, t he appeal turns on two issues. Firstly, whether prospects of
success may be taken into account in condonation applications if the explanation for the delay is found to be unsatisfactory. Secondly, whether the Labour Court exercised its discretion judicially by refusing to grant condonation despite having found that the appellant had good prospects of success in the review application.
The legal principles and application
[18] It is well accepted that condonation cannot be had for the mere asking but a
plea for the court’s indulgence to excuse the non- compliance with the prerequisite
time limits in terms of the prescripts on sufficient cause shown.5 The yardstick is the
interest of justice which entails a consideration of all the relevant factors, including
the extent and cause of the delay; the effect of the delay on the administration of
justice and other litigants; the reasonableness of the explanation for the delay; the
importance of the issue to be raised in the intended appeal; and the prospects of
success.6 Ultimately , the particular circumstances of each case will determine which
of these factors are relevant.7
5 See: Melane v Santam Insurance Co. Ltd 1962 (4) SA 531 (A) at 532B - E.
6 See: Brummer v Gorfil Brothers Investments (Pty) Ltd and Others [2000] ZACC 3; 2000 (2) SA 837
(CC) (Brummer ) at para 3; Grootboom v National Prosecuting Authority and Another [2013] ZACC 37;
2014 (2) SA 68 (CC) (Grootboom) at paras 22 - 23; Steenkamp and Others v Edcon Ltd [2019] ZACC
17; (2019) 40 ILJ 1731 (CC) (Steenkamp) at paras 36 - 37.
7 Id.
7
[19] Added to the general principles, in Steenkamp and Others v Edcon Lt d8, the
Constitutional Court endorsed the Labour Law -specific factors and considerations
which are premised on one of the primary objects of the LRA to have labour disputes
resolved expeditiously.9 Since labour disputes are inherently urgent, the LRA
imposes strict time limits within which various applications and referrals must be launched to give effect to the primary object of the LRA .
10 As a result, and pertinent
to the case at hand, condonation in a case of disputes over individual dismissals will not readily be granted unless, inter alia, the explanation for non- compliance is
compelling. What is more, a higher threshold has been set where the delay is
attributed to the internal processes and procedures of trade unions.
11
[20] The appellant concedes that the delay of more than two years is
reprehensible and that its explanation was conspicuously inadequate. Its main
impugn is , however, that the Labour Court f ailed to exercise its discretion judicially by
automatically discounting the prospects of success in its deliberation. To fortify this
contention, we were referred to this Court's recent judgment in Government Printing Works v Public Service Association & 1 another
12 (Government Printing Works )
penned by Govindjee AJA that was delivered on 28 November 2025 , after the
hearing of th is matter. The parties were allowed to file brief supplementary written
submissions addressing the dictum in Government Printing Works and they duly
obliged.
[21] In Government Printing Works , this Court likewise was confronted with the
Labour Court's refusal to condone the late deliver y of the statement of opposition
against a claim of unfair discrimination. The Labour Court opined that, given the
extent of the delay and the unreasonable explanation, it was not enjoined to consider
the prospects of success. The approach followed by the Labour Court to
condonation was rejected as it is at odds with the broad and balancing approach that
8 Steenkamp supra at para 40.
9 Id.
10 See: Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and Others
[2016] ZACC 49 ; 2018 (1) SA 38 (CC) at para 33, referred to with approval in Steenkamp.
11 Steenkamp supra at para 40.
12 Government Printing Works v Public Service Association & one other (JA35/24) [2024] ZALAC 63
(28 November 2024).
8
has emerged in our jurisprudence which is characterised by proportionality and
flexibility.13 The following observations are pertinent:
[28] The endorsement of these sentiments in Steenkamp highlights its
significance. Steenkamp’s single -sentence synthesis of the majority and
minority expressions in Grootboom appears to put the settled approach
beyond doubt:
“All factors should therefore be taken into account when assessing whether it
is in the interests of justice to grant or refuse condonation. ”
[29] The effect is that an approach which completely ignores the prospects
of success on the merits whenever there is an unsatisfactory, unreasonable or unacceptable explanation for a delay, requires explication. There does come a time in any case where a party’s disregard for procedure and delay in pursuing a matter is so extensive that they will be penalised irrespective of the merits of the case. The SCA has confirmed that an assessment of prospects
of success is a relevant factor in the exercise of a discretion regarding condonation, unless the cumulative effect of the other relevant factors in the
case is such as to render the application for condonation ‘obviously unworthy of consideration’. It is in cases of ‘flagrant’, ‘gross’ breaches of the rules,
especially in the absence of an acceptable explanation, that condonation may
be refused regardless of the merits of the appeal, even where the blame lies solely with the legal representative. In this court, it has been acknowledged that excellent prospects of success lead to the granting of condonation even when the delay is substantial and the explanation inadequate.
[30] Assuming that there remains some scope to ignore the prospects of
success completely, doing so requires careful and deliberate analysis.
Borrowing from the language supported in Steenkamp, it is first necessary to
conclude, with due deliberation, that the delay is ‘unacceptably excessive’.
Secondly, and accepting that the reference to ‘no explanation for the delay’ is
not to be construed literally, consideration must still be given to whether the
explanation offered is tantamount to an absence of a full and reasonable
(acceptable, sufficiently cogent) explanation for the delay. It should be clear,
when considering the explanation offered, that the non- observance of the rule
13 Id at paras 27 and 31.
9
is ‘flagrant and gross’ before the inquiry into the prospects of success may be
jettisoned. Thirdly, and noting the usual reluctance to do so, the court must
exercise a discretion to refuse condonation without any consideration of the
prospects of success .’14 [Own emphasis]
[22] Government Printing Works aptly expounded the applicable general principles
for condonation and dealt with a misconception that once an applicant f ails to proffer
a reasonable explanation for the excessive delay , prospects of success are of no
consequence and could be automatically discounted. Then again, as correctly
accepted by the parties, the general principle that various factors are to be
considered collectively and that no individual factor would ever be possibl y definitive
remains intact .15
[23] Even so, the third respondent is correct in its contention that the present
instance is distinguishable. Unlike in Government Printing Works, the Labour Court,
duly deliberated on all the factors , including the prospects of success. It explicitly
found the delay of more than two years egregious and the explanation unreasonable
as it was deficient and unacceptable. The Labour C ourt cannot be faulted for
rejecting the appellant's assertion that the respondent employees had no funds to
make a follow -up on their matter for two years . The appellant employee seemingly
had odd jobs that kept them busy for two years hence the y did not contact the
appellant . Clearly, funds to make a call, at least, could not have been a problem.
[24] The Labour Court also found that the prejudice to the third respondent, in the
circumstances , outweighs the prejudice to the appellant and the respondent
employees. It was the third respondent’s unrefuted evidence that the business ,
Bidvest Foodservice (Pty) Limited , ceased to exist after the unbundling and separate
listing between Bidvest Limited and Bid Corporation Limited ; and that the
management and the witnesses in this matter have left the employment of the appellant . The effect of the delay on the interests of the third respondent is self -
evident . Messrs Letsoalo and Phuti were dismissed ei ght years ago, yet the dispute
has not reached finality .
14 Id at paras 28 - 30.
15 See: Brummer supra fn 6 at para 3, referred with approval in Grootboom in para 50.
10
[25] Despite these gaping deficiencies in the appellant’s case, it persists with the
contention that condonation ought to have been granted solely on the strength of the
Labour Court’s view that it has good prospects of success. In my view , the Labour
Court ’s finding that “without an adequate and reasonable explanation, the prospects
of success are immaterial ”, understood within the context of this matter , can only
mean that the prospects of success are inconsequential in light of the other factors.
[26] This being a dispute over the individual dismissal, the test for condonation is
stringent.
16 The explanation for non- compliance had to be compelling and the case
for attacking the flaws in the proceedings had to be of a kind which would result in a
miscarriage of justice if it were allowed to stand.17 Conversely, the explanation
proffered by the appellant for the delay is not compelling. Markedly, Messrs Letsoalo
and Phuti conceded wrongdoing in failure to comply with the drop- safe policy . The
only impugn was the appropriateness of the sanction of dismissal and, in light of the
review test of reasonableness, I do not believe that justice would suffer ruination
because the award is allowed to stand.
[27] In addition, it is well accepted that an excessive delay in the prosecution of a
litigation may engender a reasonable belief that the order or award had been
acquiesced and therefore unassailable; particularly to a victorious party.18 That
notion applies with full force in this instance, particularly since labour disputes are, by
very nature, inherently urgent . Hence, the Labour Court cannot be criticised for
upholding the object of the LRA concerning the expeditious resolution of labour
disputes in circumstances where even the interests of justice yardstick has not been
met.
[28] Resultantly , I find no reason to interfere with the exercise of true discretion by
the Labour Court in the present instance as it was exercised judicially.19 To my mind,
this is a typical case where, having considered all the factors, the Labour Court was
16 See: Queenstown Fuel Distributors CC v Labuschagne NO and others [1999] ZALAC 24; (2000) 21
ILJ 166 (LAC) at paras 24 - 25, referred to in Steenkamp supra at para 41.
17 Id.
18 Toyota SA Motors (Pty) Ltd v C ommission for C onciliation, Mediation and Arbitration and Others
[2015] ZACC 40; (2016) 37 ILJ 313 (CC) at para 45.
19 See Steenkamp supra at paras 76; Government Printing Works supra at paras 15 - 22.
11
not convinced that the good prospects of success could tilt the scale in favour of
granting condonation.
Conclusion
[29] In all the circumstances, the Labour Court's order refusing condonation for the
late delivery of the review application is unassailable. The appeal accordingly falls to
be dismissed. The respondent did not pursue costs as it was not legally represented.
[30] The following order is made:
Order
1. Condonation for the late filing of the appellant’s notice of appeal is granted.
2. The lapsed appeal is reinstated.
3. Condonation for the late filing of the third respondent’s answering affidavit
opposing the appellant’s condonation and reinstatement applications is granted.
4. The appeal is dismissed.
5. There is no order as to costs.
Nkutha- Nkontwana JA
Van Nierkerk JA et Mooki AJA concur.
Appearances :
For the appellant : Adv Riaz Itzkin
Instructed by Dockrat Inc
For the respondent : Ms Fanisa Nkuna