THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JS207/22
In the matter between
PHANUEL BALOYI Applicant
and
OMEGA RISK SOLUTIONS (PTY) LTD First Respondent
CCMA, PRETORIA Second Respondent
COMMISSIONER, ROLEN VELJOEN Third Respondent
Heard: 9 October 2024
Delivered: 9 October 2024
Reasons: 7 May 2025 (This judgment was handed down electronically by
circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing -
down is deemed to be 10h00 on 7 May 2025.)
REASONS FOR ORDER
2
PHEHANE , J
Introduction
[1] On 9 October 2024, an order dismiss ing the applicant’s unopposed
application to reinstate his lapsed referral was dismissed.
[2] The brief reasons for the order appear below .
Background
[3] The applicant was dismissed from the employ of the first respondent for
operational requirements in November 2021. The applicant subsequently launched an unfair dismissal dispute under the auspices of the second respondent , and
thereafter, he approached this C ourt on 15 March 2022 by way of a referral in terms
of the now -repealed Rule 6 of this Court
1 to challenge his dismissal. The referral was
unopposed .
[4] The main action lapsed by operation of the law for non-prosecution on 15
September 2022.
2
[5] On 14 June 2024, the applicant delivered a default judgment application. On
27 June 2024, he was informed by the R egistrar of this Court that it would seem , that
the main action was archived for lack of prosecution. The applicant a vers that the
Registrar directed that he launc h this re vival application.
[6] This revival application was launched on 12 July 2024, approximately 1 year
and 10 months after the action lapsed.
1 GN 1665 of 1996: Rules Regulating the Conduct of Proceedings in the Labour Court (repealed,
effective 17 July 2024).
2 In terms of the provisions of item 16 of the now -repealed Practice Manual of the Labour Court of
South Africa , where no further steps were taken within a period of six months of the last process filed,
the referral is archived. See also: E -Tradex (Pty) Ltd t/a Global Trade Solution v Finch and Others
(2022) 43 ILJ 2727 (LAC).
3
Reasons for delay
[7] The applicant , who was at all material times legally represented, avers that
owing to his unemployment, he lacked funds to pay his attorneys to progress his action as he had no funds from 15 March 2022 until 6 March 2023, when he secured
employment . This is a period of approximately one year.
[8] The applicant further alleges that after securing employment , he had saved
funds to pay his attorneys to prosecute his action. He approached his attorneys in
May 2024, more than 12 months after he secured employment and after saving
money , to progress his matter. This means , on his own version, he was saving funds
for more than a year to pay his legal representatives to progress his action.
[9] The applicant is at pains to state that he pursued the default judgment
application without delay as he had saved money and approached his attorneys to
represent him. That he was expedient in pursuing his default judgment application is
irrelevant, as his main application had already , at that stage, lapsed by operation of
the law for lack of prosecution, a fact he was oblivious to despite being legally represented.
Test to succeed in a condonation application
[10] It is well established that a revival application is akin to a condonation
application. To succeed in the grant of condonation, an applicant must show good
cause for the delay.
3
[11] It is trite that an applicant for condonation must file an application as soon as
they become aware that condonation is necessary.
4 The applicant in the present
application did not do so, and the delay of close to two years in launching the revival
3 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).
4 See: Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G , where the Court held as
follows: ‘Whenever an appellant reali ses that he has not complied with a rule of court he should apply
for condonation without delay ’.
4
application is unexplained. This delay is excessive given the ethos of the L abour
Relations Act5 that disputes must be resolved expeditiously.
[12] In my view, not having funds and saving funds for a year after securing
employment are not sound reasons for the delay.
[13] The applicant ought to hav e approached a pro bono clinic for assistance while
he was unemployed. He does not explain why he did not explore a contingency fee agreement with his attorney to progress his action while he was saving money to pay his attorney . If litigants were to wait until they have accumulated sufficient funds to
progress the matters to pay their attorneys owing to unemployment, then the
objective of the LRA relating to expedient dispute resolution would be undermined.
[14] The applicant states that he has good prospects of success in the main
application without further elaboration. It is trite that in the absence of good reasons
for the delay, the prospects are immaterial . In the circumstances , I found that it was
not in the interests of justice to grant condonation. Therefore, the reinstatement application was not successful, and the aforesaid order was accordingly made.
M. T. M. Phehane
Judge of the Labour Court of South Africa
5 Act 66 of 1995, as amended.