THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: J1831/16
In the matter between
SONWABILE GUGUSHE Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER JOSEPH THEE N.O. Second Respondent
KLOOF GOL D MINES Third Respondent
Heard: 30 April 2025
Delivered: 30 April 2025
Reasons: 9 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 9 May 2025.)
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REASONS FOR ORDER
PHEHANE , J
Introduction
[1] On 30 April 2025, this Court handed down an order dismiss ing the applicant’s
application to reinstate his review application with costs.
[2] The reinstatement application was opposed.
[3] The brief reasons for the order appear below .
Background
[4] The applicant was dismissed from the employ of the third respondent in
November 2015. The applicant subsequently launched an unfair dismissal dispute under the auspices of the first respondent , the Commission for Conciliation,
Mediation and Arbitration (CCMA) . In an arbitration award dated 15 June 2016, the
second respondent dismissed the applicant’s referral to the CCMA , having found that
his dismissal was substantively fair.
[5] Dissatisfied with the decision by the seco nd respondent, the applicant
launched a review application in terms of section 145 of the L abour Relations Act
1
(LRA) in this C ourt on 9 September 2016, and out of time .2 While no relief is sought
in the notice of motion for condonati on of the late filing of the review application, the
applicant makes a terse averment in his founding affidavit in the review application
that the delay was due to him being ‘ relaxed and waiting for a Court date’ after he
gave his trade union instructions to launch the review application. I refer to this
1 Act 66 of 1995, as amended.
2 The review application was not launched within the statutorily prescribed period of six weeks as
provided in section 145 of the LRA.
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averment later in this judgment as it turns on whether or not the applicant has
prospects of success in his review application. [6] After the CCMA filed its notice in terms of Rule 7A(2) and (3) of the now -
repealed Rules of t his Court
3 on 13 September 2016, the applicant, at all times
legally represented, served a record of the transcribed arbi tration proceedings on the
third respondent on 15 March 2017. The applicant did file the record with the Registrar of this Court as was contemplated in the former Rule 7A(6). Counsel for
the applicant concedes that no Rule 7A(6) notice was filed by the applicant. No
notice in terms of the former Rule 7A(5) was filed by the applicant. It , therefore ,
cannot be established if the record was filed on time.
[7] Be that as it may, as the chronology of events unfolds, on 5 April 2017 and on
a further three occasions, the third respondent’s attorney of record enquired from the
applicant in correspondence as to when the applicant would deliver i ts notice in
terms of the former Rule 7A (8). The was no reaction by the applicant to this
correspondence.
4 It bears mentioning that the third respondent avers that the
transcribed record that was filed by the applicant is incomplete.
[8] Due to the applicant's failure to prosecute its review application, the third
respondent approached the Registrar of this C ourt by way of a letter dated 9
February 2018, requesting that the review application be archived. In an order dated
16 November 2021, this C ourt archived the review application.
[9] As matters stood, due to the failure by the applicant to prosecute his review
application and failure to take any further steps in his application since the filing of
the Rule 7 A(2) and (3) notice, at the very least , his review application lapsed by
operation of the law on 13 December 2016 in terms of the provisions of item 16 of
the Former Practice Manual of this Court.
5
3 GN 1665 in GG 17945 of October 1996 (repealed, 17 July 2024 ).
4 Answering affidavit at para s 21 and 22 on p 305.
5 Practice Manual of the Labour Court of South Africa (repealed, 17 July 2024) . See: E-Tradex (Pty)
t/a Global Trade Solution v Finch and Others (2022) 43 ILJ 2727 (LAC) .
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[10] The applicant avers that it only became aware of the Court order archiving the
review application in April 2022, however, this reinstatement application was only
launched on 7 October 2022, approximately 6 months later . No explanation is
proffered for this delay.
Test to succeed in a condonation application
[11] 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.
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[12] It is trite that an applicant for condonation must file an application as soon as
they become aware that condonation is necessary
7 and a full, accurate and detailed
explanation must be provided for the entire period of delay.8
Delay , non- compliance with Rules and reasons therefore
[13] The applicant , legally represented, is the deponent to the founding affidavit in
this application. He deposes to the affidavit in the third person and avers that after the record was served on the thi rd respondent on 15 March 2017 and after the thir d
respondent enquired from his attorney of record on 5 April 2017 about the delivery of
the R ule 7 A(8) notice, he could not be reached by his attorney . The applicant states
that his attorney sent a letter to him dated 8 April 2017 to his last known address ,
and he did not reply to this letter. The applicant avers that he contacted his attorney
in March 2020 to inform this attorney that he had relocated to the Eastern Cape and
undertook to make himself available for consul tation at the end of March 2020. He
proceeds to explain in his affidavit that he had no electricity or cell ular phone network
coverage in this geographical location.
[14] It is noteworthy that , on the applicant’s own version, he only contacted his
attorney of record regarding his review application three years after the record was
6 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).
7 See: Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G .
8 See: Ntsele v Commission for Conciliation, Mediation and Arbitration [2017] ZALCJHB 161 at para 9.
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served on the third respondent. No detailed explanation is provided for this entire
period of delay , as in incumbent on an applicant in a condonation application to
provide to the Court, as it seeks the indulgence of the Court to grant condonation for the delay. By this date, the review application had long lapsed by operation of the
law.
[15] The applicant further explains, rather conveniently, that due to the national
lockdown measures that were implemented in South Africa in reaction to the COVID-
19 pandemic, he could not consult with his att orney. In April 2022, two years later , he
applied for a job and had been blacklisted. Consequently, he instructed his attorney to proceed with the review application. It was at this point that his attorney of record discovered that his review application had been arc hived.
[16] The extent of the delay is five years. This is egregious. The applicant further
delayed by six months to launch this present application , and he has failed to explain
this period of delay. It is trite that an applicant is to apply for condonation as soon as
they become aware that condonation must be sought.
[17] The applicant’s explanation for the delay and non- compliance with the Rules
and provisions and Practice Manual that were applicable at the time is terse, ho llow
and unconvincing. The entire period of delay is unexplained.
[18] The failure to provide a detailed, accurate and sound explanation for the
entire period of delay and for the non-compliance with the Rules is fatal to the
reinstatement application. [19] The applicant did not progress his review application, as, on his own version,
he failed to remain in contact with his legal representative to give instructions to progress his application. As submitted by Counsel for the third respondent, the applicant abandoned his review application, and the real reason the applicant
contacted his attorney in April 2022 is due to him not being able to successfully obtain employment.
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[20] In my view, the explanation proffered by the applicant for the delay is unsound
and unsatisfactory.
Prospects of success [21] Condonation for the late filing of the review application is the first hurdle that
the applicant must overcome in the main application, the review application. As
stated above, the applicant provides a terse explanation in his founding affidavit in the review application for the late filing of that application. The applicant has not
made any averment whatsoever in this application in relation to the prospects of success in relation to condonation for the late filing of the review application. In the
circumstances, the applicant has not established that he has prospects of success in the main application. In any event, in view of the extensive period of delay and without a reasonable explanation for the delay, the prospects are immaterial.
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Prejudice
[22] The ethos of the LRA is that disputes must be resolved expeditiously.
[23] This is an applicant who delayed to approach this Court timely for relief to
review and set aside the arbitration award for the reason that he was ‘relaxed and
waiting for a Court date’. This is also an applicant who abandoned his review
application for five years in circumstances where he was dismissed, now, ten years
ago. In addition, an incomplete record has been delivered to the third respondent ,
and this would mean reconstructing a record in proceedings t hat sat ten years ago.
The prejudice to the respondent , who was entitled, given the lapse of time and no
reaction to its correspondence in 2017 for the applicant to progress its review
application, to hold the view that the applicant had abandoned its case, is greater
should this application be granted.
[24] If there was a case that offends against the principle of expeditious dispute
resolution, it is this case, as the applicant relaxed and did nothing until he realised he
9 See: National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).
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was unable to regain entry into the mining industry for work on account of the
misconduct he had committed at the third respondent. The COVID- 19 pandemic
lockdown restrictions are a convenient excuse that is unconvincing. During the two
years after the first national lockdown was declared, business and the economy
opened up, and the applicant chose to abandon his review application.
[25] There is thus no merit to this reinstatement application. No replying affidavit is
filed contesting the allegations as contained in the answering affidavit.
[26] This application is hopeless and woeful as it does not meet the well-
established requirements to succeed in the grant of condonation. This application
ought not to have seen the light of day.
Costs
[27] The conduct of the applicant in pursuing this hopeless reinstatement
application without merit is conduct that warrants an order for the payment of costs.
The third respondent has incurred costs in defending a hopeless application where
hollow reasons are presented for failing to comply with the Rules of this Court and
failing to timely progress a review application.
[28] It is for the aforesaid reasons that the above order was made.
M. T. M. Phehane
Judge of the Labour Court of South Africa