THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS782/22
In the matter between:
REGINALD MOLEFE First Applicant
PETER KWANGA Second Applicant
and
UNITRANS PASSENGER
(Known as BOJANALA BUS) Respondent
Heard: 13 May 2025
Delivered: 12 June 2025
JUDGMENT
SCHENSEMA, AJ
Introduction
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[1] This is an opposed condonation application for the late filing of the applicants’
statement of claim.
Background
[2] For the purposes of this judgment, it is appropriate to commence with a
concise overview of the relevant factual background.
[3] The applicants were employed as inspectors. On 19 July 2022, the
respondent’s employees embarked on an unprotected strike. Following the return to
work, the employees who had participated in the unprotected strike were issued with
final written warnings.
[4] The applicants , however, were charged with an additional charge of
incitement and were subsequently dismissed in September 2022. What precisely
transpired, resulting in the applicants’ dismissal, is the subject of the dispute.
[5] The applicants have submitted that they were scheduled for the afternoon
shift commencing at 12h00 midday until 21h00. Upon their arrival at work, they were
unable to gain access to the respondent’s premises in light of the work stoppage.
Upon gaining access to the respondent’s premises, they were advised by the Chief
Inspector Netshamolota to sign the daily register in order to prove that they were not
participating in the strike.
[6] After signing the register , the applicants waited outside. Whilst waiting , the
respondent’s management addressed the striking workers, instructing the employees
to return to work, which instruction was ignored.
[7] On 20 July 2022, the applicants were scheduled to work the morning shift ,
which commenced at 03h00 and ended at 12h00 pm. Upon their arrival, the strike
was still ongoing. On 21 July 2022, the strike ended, and upon their arrival at work ,
the applicants were suspended for having initiated the strike. A joint disciplinary
hearing was held for the employees who had engaged in the unprotected strike,
which ultimately resulted in the employees receiving a final written warning.
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[8] The applicants however , were subjected to a separate disciplinary enquiry in
which they faced an additional charge of incitement, resulting in their dismissal.
[9] The respondent’s version is that in addition to the applicants’ involvement in
the unprotected strike, the applicants were implicated in several other acts of
unlawful conduct and misconduct in that the applicants had:
9.1 Acted as spokespersons for the striking employees;
9.2 Refused to allow members of management to give feedback on the
issues raised by the striking employees; and
9.3 Stated to members of management that if the strikers’ demands were
not met, no one would return to work, even after the interdict had been
granted by the Labour Court.
[10] Dissatisfied with their dismissal, the applicants referred an unfair dismissal
dispute to the South African Road Passenger Bargaining Council . On 3 November
2022 a certificate of non-resolution was issued in which the applicants were required
within 90 days to refer their unfair dismissal dispute to the Labour Court.
[11] The statement of claim ought to have been filed at the Labour Court on or
before 1 February 2023, however was only served on the respondent on 31 May
2024 and filed at Court on 3 June 2024. The filing of the statement of claim is
therefore 16 months late.
[12] Notwithstanding that the statement of claim was only filed at Court on 3 June
2024, the condonation application for the late filing of the statement of claim was
filed 6 weeks later on 17 July 2024.
Reasons for the delay
[13] The applicants have submitted the following reasons for the delay in filing the
statement of claim:
13.1 At the conciliation, the applicants were represented by Mr Letlape of
NUMSA;
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13.2 The applicants believed that at the conclusion of the proceedings on 3
November 2022 that NUMSA would continue to represent the applicants at
the Labour Court;
13.3 Mr Letlape subsequently advised the applicants that NUMSA was “not
taking their matter seriously” and proposed to the applicants that they lodge
their case with the Labour Court themselves , and further informed the
applicants of the need to ensure compliance with the timeframe;
13.4 On 9 November 2022 the applicants received their case number ,
thereafter which they consulted with an Advocate Moloto and instructed him to
proceed to draft the statement of claim;
13.5 The applicants at this stage believed that their matter was being dealt
with by Advocate Moloto and that the statement of claim would be timeously
filed in accordance with the Rules of this Court;
13.6 The applicants subsequently consulted with Advocate Moloto at least 3
times a month from November 2022 to July 2023. The reason for these
consultations has not been disclosed by the applicants. The applicants ,
however, continued to believe throughout these numerous consultations that
the statement of claim had been served and filed;
13.7 The applicants subsequently contacted the respondent’s chief
inspector to enquire whether the respondent had received the statement of
claim. In response to this, Chief Inspector Netshamolota informed the
applicants that the respondent had not received the statement of claim . By
this stage, the statement of claim was already 5 months late;
13.8 After having been informed by Chief Inspec tor Netshamolota that the
statement of claim had not been served on the respondent, the applicants
contacted Advocate Moloto;
13.9 On 17 August 2023, the applicants demanded proof from Advocate
Moloto that the statement of claim had been served on the respondent. In
response to this demand, Advocate Moloto informed the applicants that the
statement of claim had not been served and filed, resulting in the applicants
statement of claim had not been served and filed, resulting in the applicants
terminating his mandate and lodging a complaint with the Legal Practice
Council on 22 August 2023;
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13.10 The first applicant subsequently contacted his brother -in-law, who
advised the first applicant to seek the assistance of T Mapanza attorneys . At
this stage, the statement of claim was 6 months overdue;
13.11 On 28 September 2023, the applicants duly signed a mandate with Mrs
Thandeka Mpanza of T Mapanza Attorneys and subsequently instructed her
to proceed with the filing of the statement of claim;
13.12 Notwithstanding the signing of the mandate in September 2023, on 27
November 2023, Mrs M apanza advised of a conflict of interest and that she
could no longer continue with the instruction. A period of almost 2 months had
passed since the signing of the mandate. No explanation for this period has
been provided;
13.13 The applicants were subsequently advised by Mrs Mapanza to
approach Mrs Mpho Mogodi, who assisted on a pro bono basis;
13.14 Despite the referral, Mrs Mogodi showed no interest in assisting the
applicants;
13.15 The applicants subsequently met with Mr Letlape of NUMSA , who
referred the applicants to Mrs Portia, at this stage, the statement of claim was
already 12 months late;
13.16 On 25 February 2024, Mrs Portia referred the applicants to Mqina
attorneys. The applicants consulted with Mr Mqina on 26 February 2024, and
Mr Mqina advised the applicants that he would require R2500.00 for him to
travel to Johannesburg for purposes of perusing the court file to determine
what progress had been made. Given the applicants’ financial constraints,
they were not able to immediately make the payment to Mqina attorneys;
13.17 On 12 March 2024, it was confirmed that nothing other than a case
number had been obtained in respect of this matter . No explanation has been
provided as to why it was necessary for an inspection of the Court file to be
made, given that the applicants at this stage were fully aware that the
statement of claim had not been filed;
13.18 Notwithstanding the applicants being advised of their limited prospects
13.18 Notwithstanding the applicants being advised of their limited prospects
of success, the applicants were able to convince Mqina attorneys on a pro
bono basis to assist them; and
13.19 The statement of claim was subsequently served and filed on 31 May
2024 and 3 June 2024, respectively.
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Prospects of Success
[14] In respect of the prospects of success, the applicants refer this Court to their
statement of claim in which they have set out the various factors in support of their
claim that they have good prospects of success.
[15] In summary , the applicants maintain that they did not participate in the
unprotected strike and further deny having incited the strike action. The applicants
have further submitted that the respondent’s sanction was inconsistent in that other
employees who had participated in the unprotected strike had only received a final
written warning.
[16] Furthermore in light of the fact that the charges emanated from the same set
of facts, the decision to dismiss was unfair. In conclusion, the applicants are of the
view that the respondent has adduced no evidence to support the charges against
the applicants and, in this regard, rely on the fact that they had been paid during the
unprotected strike action.
Analysis of the condonation application for the late filing of the statement of claim
[17] The relevant legal principles to be applied in an application for condonation
are well established. This Court is required to exercise a discretion, having regard to
the extent of the delay, the explanation for that delay, the prospects of success and
the relative prejudice to the parties that would be occasioned by the application
being granted or refused. The interest of justice will ordinarily reflect regard for all
these factors.
[18] In A Hardrodt (SA) (Pty) Ltd v Behardien & others
1 (Hardrodt) the Labour
Appeal Court (LAC) restated the guidelines laid down in Queenstown Fuel
Distributors CC v Labuschagne NO and others
2 and held inter alia that there must be
good cause shown for condonation in the sense that the reasons tendered for the
1 (2002) 23 ILJ 1229 (LAC).
2 [1999] ZALAC 24; (2000) 21 ILJ 166 (LAC).
7
delay have to be convincing. In other words, the excuse for non- compliance with the
time periods must be compelling. The onus is on the applicant to satisfy the Court
that condonation should be granted.
[19] The courts have held and emphasised that an applicant must necessarily act
with the degree of diligence required, thus giving effect to the statutory imperative of
expeditious dispute resolution.
[20] The onus is on the applicant seeking condonation to satisfy the Court that
condonation should be granted. In employment disputes, there is an additional
consideration which applies in determining whether the onus has been discharged,
as was held in National Union of Metalworkers of SA on behalf of Thilivhali v Fry’s
Metals (A Division of Zimco Group) & others (Thilivali):
3
‘There is, however, an additional consideration which applies in employment
disputes in determining whether an applicant for condonation has discharged
this onus. This is the fundamental requirement of expedition. The
Constitutional Court has, as a matter of fundamental principle, confirmed that
all employment law disputes must be expeditiously dealt with and any
determination of the issue of good cause must always be conducted against
the back drop of this fundamental principle in employment law.’
[21] In summary: the Courts have endorsed the principle that where there is a
delay with no reasonable, satisfactory and acceptable explanation for the delay,
condonation may be refused without considering prospects of success, and to grant
condonation where the delay is not explained may not serve the interests of justice.
The expeditious resolution of labour disputes is a fundamental consideration.
[22] Notwithstanding the aforementioned principle, a measure of flexibility has
been applied where required in the interests of justice. In NEHAWU obo Mofokeng &
others v Charlotte Theron Children’s Home
4 it was determined that, in the interest of
others v Charlotte Theron Children’s Home
4 it was determined that, in the interest of
justice, the case should proceed, as the policy in question appeared to be deeply
3 Thilivali (2015) 36 ILJ 232 (CC); [2014] ZALCJHB 115 at para 25.
4 [2004] 10 BLLR 979 (LAC); (2004) 25 ILJ 2195 (LAC).
8
influenced by a racist perspective and was perpetuating ongoing racial
discrimination. In this case, the circumstances were described as “exceptional” ,
thereby justifying less focus on the unexplained periods of delay.
[23] In the matter of Government Printing Works v Public Service Association and
another
5 the LAC held at paragraph 26:
‘Judicial discretion involves a value judgment based on the facts of the case.
The Labour Court must be fair to both sides. It must also consider the broader
objects of the LRA, including the importance of expeditious resolution of
employment disputes. The fact ors that must be considered in determining
whether or not it is in the interests of justice to grant condonation, and the
appropriate approach, have now been resolved as follows:
“[22] … [T]he concept ‘interests of justice’… includes: the nature of the relief
sought; 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… ; and the prospects of
success. It is crucial to reiterate that… the ultimate determination of what is in
the interests of justice must reflect due regard to all the relevant factors but it
is not necessarily limited to those mentioned above. The particular
circumstances of each case will determine which of these factors are relevant.
[23] It is now trite that condonation cannot be had for the mere asking. A
party seeking condonation must make out a case entitling it to the court’s
indulgence. It must show sufficient cause. This requires a party to give a full
explanation for the non- compliance with the rules or court’s directions. Of
great significance, the explanation must be reasonable enough to excuse the
default…
[51] The interests of justice must be determined with reference to all
relevant factors. However, some of the factors may justifiably be left out of
relevant factors. However, some of the factors may justifiably be left out of
consideration in certain circumstances. For example, where the delay is
unacceptably excessive and there is no explanation for the delay, there may
be no need to consider the prospects of success. If the period of delay is short
and there is an unsatisfactory explanation but there are reasonable prospects
5 [2025] 2 BLLR 112 (LAC).
9
of success, condonation should be granted. However, despite the presence of
reasonable prospects of success, condonation may be refused where the
delay is excessive, the explanation is non- existent and granting condonation
would prejudice the other party. As a general proposition the various factors
are not individually decisive but should all be taken into account to arrive at a
conclusion as to what is in the interests of justice.
[27] This description evokes a balancing approach, characterised by
proportionality and flexibility. The general principle remains that the various
factors are to be considered collectively, and not mechanically, in determining
the interests of justice.’ (own emphasis)
[24] It is in this context that the application for condonation stands to be
determined.
Explanation for the delay
[25] It is trite that a failure to comply with the timeframes must be fully explained
and the reasonableness of the delay should be considered by having regard to the
explanation for the delay.
[26] The explanation for the delay has to be compelling, convincing and
comprehensive and should cover every period of the delay.
6 Furthermore that the
explanation provided is reasonable and acceptable. In this regard an applicant in a
condonation application is required to provide an explanation for the entire period of
the delay and the aspects related thereto.
[27] The facts before this Court required the applicant s to provide an explanation
for the entire period of the delay, i.e. from 1 February 2023 to 3 June 2024.
[28] With reference to the explanation for the delay, the applicants have attempted
to provide an explanation by setting out the following time periods:
28.1 9 November 2022, the applicants applied for a case number;
6 Van Wyk v Unitas Hospital and Others 2008 (4) BCLR (CC); [2007] ZACC 24.
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28.2 During November 2022, a consultation was held with Advocate Moloto
and the applicants were subsequently under the mistaken belief that their
statement of claim had been served and filed by Advocate Moloto;
28.3 From November 2022 to July 2023, the applicants consult ed with
Advocate Moloto three times a month . The reason for these consultations is
not disclosed;
28.4 Sometime in July/August 2023, the applicants contacted Chief
Inspector Netshamolota who informed them that the respondent had not
received the statement of claim. The reason for this contact is not explained;
28.5 On 17 August 2023, Advocate Moloto admitted to not having served
and filed the statement of claim;
28.6 On 28 September 2023, a new mandate was signed with T Mapanza
Attorneys;
28.7 27 November 2023, T Mapanza A ttorneys withdraw on the basis of a
conflict of interest;
28.8 Contact is made with Mrs Mpho Mogodi (date unknown);
28.9 No progress is made by Mrs Mogodi and the applicants approach Mr
Letlape of NUMSA (date unknown), who advises the applicants to contact Mrs
Portia;
28.10 Mrs Portia makes contact with Mqina Attorneys on 25 February 2024;
28.11 Consultation with Mqina Attorneys is held on 26 February 2024;
28.12 12 March 2024, the court file is inspected by Mqina Attorneys; and
28.13 On 31 May 2024, the statement of claim is served on the respondent
and filed at court on 3 June 2024.
[29] It is clear from the aforementioned timeline that the applicants have failed to
provide an explanation for the entire period of the 16 month delay . The case law in
this regard is clear.
[30] In Sibanyoni v Trans-Africa Projects (Pty) Ltd
7, the Labour Court held that an
explanation for the delay in referral to the Labour Court has to be compelling,
convincing and comprehensive and should cover every period of the delay.
7 (J385/16) [2018] ZALCJHB 130 (13 March 2018).
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[31] Whilst I am sympathetic to the applicants ’ challenges, it is clear from the time
line provided that the applicants for long periods of time did nothing under
circumstances where they were well aware that there was a specific time period in
which the statement of claim needed to filed.
[32] Whilst much of the blame can be attributed to the various legal
representatives (prior to Mqina Attorneys’ appointment), whose repr esentation can
only be described as deplorable, the re is a limit beyond which a litigant cannot
escape the results of his attorney’s lack of diligence of the insufficiency of the
explanation tendered.
[33] In SA Post Office Ltd v Commission for Conciliation, Mediation & Arbitration &
others
8 the learned judge confirmed that in an application for condonation, a party
cannot use the negligence of its legal representative as a reason for failing to adhere
to the statutory time period. Thus, the applicants cannot even rely on the negligence
and/or incompetence of their representatives to justify the delay.
[34] In Superb Meat Supplies CC v Maritz
9 the court held that there have been
frequently repeated judicial warnings that there is a limit beyond which a litigant
cannot escape the results of his attorney’s lack of diligence of the insufficiency of the
explanation tendered. It has never been the law that invariably a litigant will be
excused if the blame lies with the attorney, to hold otherwise might have a disastrous
effect upon the observance of the rules of this court and set a dangerous precedent.
It would invite and encourage laxity on the part of practitioners. This principle was
enunciated in the PPWAWU & o thers v AF Dreyer & Co (Pty) Ltd 10 where the court
held that “employees are not entitled to rely on the tardiness of their representative.
Although the delay was caused by the negligence of the representative, there are
limits to which applicants can rely on such negligence even when they are personally
innocent of any tardiness.”
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innocent of any tardiness.”
11
8 (2011) 32 ILJ 2442 (LAC); [2012] 1 BLLR 30 (LAC).
9 (2004) 25 ILJ 96 (LAC).
10 [1997] 9 BLLR 1141 (LAC).
11 Ibid at para 14.
12
[35] For purposes of properly determining the condonation application and with
reference to recent case law in particular the matter of Government Printing Works v
Public Service Association and Another 12 (Government Printing) I have not limited
my assessment of the condonation application on the basis of the reasons for the
delay only.
[36] It is for this reason that I have further considered whether compelling reasons
have been established by the applicants to justify its shortcomings in their
condonation application to be overlooked in the interests of justice.
[37] There can be no dispute that the delay in this matter is excessive, thereby
necessitating the applicants to provide a full explanation for the delay.
[38] By their own admission, the applicants were aware of the applicable
timeframes. Nevertheless, they failed to pursue their dispute expeditiously. The
reasoning for the numerous monthly consultations with Advocate Moloto, for
example, are not fully explained. In this regard, I can only agree with the respondent
that were the applicants of the belief that their statement of claim had been filed,
there would have been no reason to consult with Advocate Moloto in the absence of
the respondent’s response to the statement of claim.
[39] Furthermore, no reasons have been provided (despite the applicants’ belief
that the statement of claim had been served on the respondent) as to why they made
contact with the respondent’s chief inspector to establish whether the statement of
claim had been served on the respondent.
[40] The applicants’ prospects of success in my view are not sufficient to excuse
their failure to provide a full account for the delay. The lengthy and unexplained
periods of inaction, despite their awareness of the deadlines, therefore, cannot be
overlooked. In short, there is nothing special about the applicants’ case that would
make a compelling case for the shortcomings in the condonation application to be
make a compelling case for the shortcomings in the condonation application to be
overlooked in the interest of justice.
12 [2024] ZALAC 63; [2025] 2 BLLR 112 (LAC).
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[41] The onus falls on the applicants to convince this Court that a case for
condonation has been made out. F or the reasons set out above, I am not satisfied
that the applicants have shown good cause for condonation to be granted, and it
would not be in the interests of justice to do so.
Costs
[42] This Court has a wide discretion in awarding costs, I am of the view that this is
a matter where the interests of justice will be best served by making no order as to
costs.
[43] In the premises, I make the following order:
Order
1. The condonation application is dismissed.
2. There is no order as to costs.
H Schensema
Acting Judge of the Labour Court of South Africa
Appearances
For the Applicants: Mr Mqina of Mqina Attorneys
For the Respondent: Advocate C Orr SC
Instructed by: Bowman Gilfillan Attorneys