THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 630/2023
In the matter between:
THE DEPARTMENT OF MILITARY VETERANS Applicant
and
PUBLIC SERVICE ASSOCIATION First Respondent
LEBOGANG PORTIA THINDISA Second Respondent
MOHAU NTAOPANE N.O Third Respondent
GENERAL PUBLIC SERVICES SECTOR
BARGAINING COUNCIL Fourth Respondent
Heard: 12 June 2025
Delivered: 30 July 2025
This judgment was handed down electronically by consent of the parties’
representatives by circulation to them via email. The date for hand- down is deemed
to be 30 July 2025.
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JUDGMENT
PRINSLOO J
Introduction
[1] The Applicant filed an application t o review and set aside a rescission ruling
issued under case number GPBC2145/2019. The review application was filed
outside the prescribed period of six weeks, and for this , the Applicant seek s
condonation.
[2] The First Respondent, acting on behalf of the Second Respondent
(Respondent), opposed the application for review and condonation.
[3] The matter was set down for hearing on 11 June 2025.
[4] The state of this matter is lamentable, and I deem it necessary to set out the
pertinent and concerning issues. The application is one for the review of a rescission
ruling, and in the founding affidavit , mention is made of certain annexures, for
example, annexure ‘A” is the rescission ruling, annexure “B” being the application for
rescission of the default arbitration award, and three more annexures are referred to.
However, a perusal of the application reveals that none of what is referred to in the
founding affidavit is attached; instead, a document, comprising 120 pages and titled
‘Service level agreement entered into by and between the Department of
Cooperative Governance and Out the Box Foundation’, is attached as the only
annexure.
[5] The Applicant, represented by Ms Sithebe from the State Attorney, served the
Respondent with the indexed and paginated bundle on 10 November 2023. Mr
Mphahlele, representing the Respondent, perused the bundle and on 14 November
2023, he addressed an email to Ms Sithembe, stating that the incorrect annexures
were attached, as the attached annexure did not relate to this matter. Ms Sithembe
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was requested to correct the mistake and to serve the correct documents. A month
later, on 14 December 2023, Ms Sit hembe responded to Mr Mphahlele that ‘the
contents of your email are noted and will attend to same’.
[6] The notice of set down was sent to the parties on 25 January 2025, informing
them that the matter was set down for hearing on 11 June 2025. When the matter
was heard, the same incorrect annexure was attached to the founding affidavit. This ,
notwithstanding Ms Sit hembe’s undertaking in December 2023 to attend to the
correction thereof and notwithstanding the fact that the parties were notified almost
six months in advance of the hearing date.
[7] This shocking state of affairs persisted, even on the date of the hearing, and
the Applicant did not bother to take any steps to ensure that the correct documents
were before this Court and could not be less interested in placing this Court in a
position to peruse the application and to comprehend the Applicant’s case.
[8] As already alluded to, the application for review was filed late, and the
Applicant seeks condonation for that. In the founding affidavit , it is explained that the
rescission ruling was received on 6 April 2022, the State Attorney was instructed on
25 April 2022, and counsel was briefed on 10 May 2022. The review application had
to be filed by 18 May 2022. The condonation application covers the period up until 7
September 2022, when the application for review was finalised.
[9] It is evident from the notice of motion that it was only signed on 21 April 2023
and from the Court stamp that the review application was only filed with the Registrar
on 19 May 2023. Evidently , there was no explanation for the period from 7
September 2022 until May 2023, and this issue was raised in the Respondent’s
answering affidavit. The Applicant filed a replying affidavit, clearly being alerted to
the fact that the period of the delay is not explained, but instead of explaining the
the fact that the period of the delay is not explained, but instead of explaining the
delay and placing f acts before this Court to enable the Court to understand the
reasons for the delay, the Applicant merely submitted that ‘ ..the miscalculation of the
decree (sic) of lateness happened as the results (sic) of delay between signing and
filing of the founding affidavit by the deponent and it was never done deliberately to
mislead court’.
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[10] As I was of the view that the delay and the conduct in this matter called for an
explanation, I stood the matter down to 12 June 2025 to afford Ms Sithem be an
opportunity to file an affidavit to provide an explanation to this Court. The affidavit
was filed , but it appeared not to address the material issues and Ms Mabuza,
counsel for the Applicant, pleaded for another opportunity to file an improved affidavit
to present a better explanation.
[11] I am not inclined to accede to Ms Mabuza’s request – I already afforded the
Applicant’s attorney an opportunity to file an affidavit , which was a lenient
indulgence, given the horrific state of the application and considering that the
Respondent previously raised the same issues with the Applicant’s attorney.
Furthermore, as will be fully dealt with infra, the Applicant and the State Attorney
were aware since April 2025 that it was necessary to supplement the papers, yet
they showed no interest in doing so then – that is certainly not a reason to grant the
indulgence now, given the disinterest and conduct of the responsible officials. The
issues were not new ; there was sufficient time to attend to them and to cure the
defects, yet nothing was done, and this Court already extended a lifeline to the
Applicant by standing the matter down and affording an opportunity to file an
explanatory affidavit.
[12] I will deal with the application on the papers as they are before me. The first
issue to be decided is whether the Applicant should be granted condonation for the
late filing of its review application.
The principles applicable to the grant of condonation
[13] 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 the delay, the prospects of success and
the relative prejudice to the parties that would be occasioned by the application
the relative prejudice to the parties that would be occasioned by the application
being granted o r refused. The interest of justice will ordinarily reflect regard to all
these factors.
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[14] In Melane v Santam Insurance Co Ltd1, it was held that:
‘…Among the facts usually relevant are the degree of lateness, the
explanation therefor, the prospects of success, and the importance of the
case. Ordinarily these facts are interrelated : they are not individually decisive ,
for that would be a piecemeal approach incompatible with a true discretion,
save of course that if there are no prospects of success ther e would be no
point in granting condonation… What is needed is an objective conspectus of
all the facts.’
[15] In A Hardrodt (SA) (Pty) Ltd v Behardien and others 2 (Behardien), the Labour
Appeal Court (LAC) restated the guidelines laid down in Queenstown Fuel
Distributors CC v Labuschagne NO and others3 as inter alia that there must be good
cause for condonation in the sense that the reasons tendered for the delay have to
be convincing. In other words, the excuse for non- compliance with the six -week
period must be compelling. The onus is on the applicant to satisfy the court that
condonation should be granted.
[16] The courts have held and emphasised that in applications to review and set
aside arbitration awards, an applicant must necessarily act with the degree of
diligence required by the R ules of this C ourt and the Practice Manual
4, thus giving
effect to the statutory imperative of expeditious dispute resolution. Although the
Labour Court Rules were amended and the amended Rules are now applicable, and
the previous Rules and the Practice Manual were repealed, this application was filed
in 2023 and will be decided in terms of the previous Rules and the provisions of the
Practice Manual, which applied at the time.
[17] In Toyota SA Motors (Pty) Ltd v C ommission for C onciliation, Mediation and
Arbitration and Others
5, the Constitutional Court emphasised that one of the
fundamental purposes of the Labour Relations A ct6 (LRA) was to establish a system
1 1962 (4) SA 531 (A) at 532 C - F.
2 (2002) 23 ILJ 1229 (LAC) at para 3.
1 1962 (4) SA 531 (A) at 532 C - F.
2 (2002) 23 ILJ 1229 (LAC) at para 3.
3 (2000) 21 ILJ 166 (LAC).
4 Practice Manual of the Labour Court of South Africa, effective 2 April 2013. It has been repealed
with effect from July 2024.
5 (2016) 37 ILJ 313 (CC).
6 Act 66 of 1995, as amended.
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for the simple, quick, cheap and informal adjudication of labour disputes. When it
assesses the reasonableness of a delay, the court must not lose sight of this
purpose.
[18] Condonation for delays in all labour law litigation is not simply there for the
taking. The starting point is that an applicant in an application such as the present
seeks an indulgence and bears the onus to show good cause and a proper case
should be made out before the indulgence can be granted.
[19] It is in this context that the application for condonation stands to be
determined.
The degree of lateness and the explanation tendered
Degree of lateness
[20] The first issue to be considered is the degree of lateness.
[21] In casu, the rescission ruling was received on 6 April 2022, and the review
application had to be filed by 18 May 2022. The State Attorney was instructed on 25
April 2022, and counsel was briefed on 10 May 2022. The condonation application ,
which is included in the Applicant’s founding affidavit, covers the period up until 7
September 2022, which appears to be the date when the application for review was
finalised.
[22] However, the notice of motion was only signed on 21 April 2023, and the
Court stamp indicates that the review application was only filed with the Registrar on
19 May 2023.
[23] In Mbatha v Lyster and others
7, the LAC held that in terms of Rule 7A(1) , an
applicant in a review application is obliged to 'deliver a notice of motion to the person
or body and to all other affected parties '
8. It follows, reading Rule 7A together with
the effect of the definition of 'deliver ' in Rule 1, that an application is made within six
7 (2001) 22 ILJ 405 (LAC).
8 Ibid at para 16.
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weeks of the publication of the award only if it is delivered to all the respondents and
filed with the Registrar of the Labour Court within such period.
[24] In casu, this application was thus filed on 19 May 2023, more than one year
after the expiry of the prescribed six-week period. The delay is indeed material, given
the fact that a review application has to be filed within six weeks. Considering the
context within which labour litigation takes place and the system that is designed to
ensure the effective and expeditious resolution of labour disputes , the aforesaid
delay is no doubt inordinate. The Practice Manual for the Labour Court expressly
stated that a review application is , by its nature, an urgent application. Section
145(5) of the LRA provides that an applicant for review must apply for a date for the
matter to be heard within six months of the delivery of the application. A delay of 12
months is not insignificant, but rather concerning in view of the fact that the Applicant
has been legally represented and is not acting as a layperson without means.
[25] I have to consider the reasonableness of the delay by having regard to the
explanation for the delay. As the LAC has held, the explanation has to be compelling
and convincing.
[26] As the Applicant seeks an indulgence from the C ourt and bears the onus to
satisfy the Court that condonation should be granted, it is incumbent on the Applicant
to provide the Court with a full explanation for every period of the delay. It is not
sufficient simply to list significant events that occurred during the period in question,
as that does not assist the court in properly assess ing the reasonableness of the
explanation.
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[27] The explanation tendered for the delay, as it appears from the founding
affidavit, only covered the period until 7 September 2022, and there was no
explanation for the period from 7 September 2022 until 19 May 2023.
explanation for the period from 7 September 2022 until 19 May 2023.
[28] In the explanatory affidavit filed by Ms Sithembe, she explained the further
eight months’ delay as follows:
9 See: Independent Municipal & Allied Trade Union on behalf of Zungu v SA Local Government
Bargaining Council and Others (2010) 31 ILJ 1413 (LC).
8
Explanation for the delay
[29] Counsel finalised the review application and it was emailed to Ms Sithembe in
September 2022, and it was emailed to ‘the client’ on 29 September 2022 for ‘inputs
and commissioning’ in order to file it with the Labour Court. No response was
received. Ms Sithembe stated that ‘numerous follow ups and phone calls were made
to the client and there was no response’ and those were made by way of emails and
calls. Ms Sithembe did not attach any emails as proof of the ‘numerous follow -ups’
nor did she provide any details as to the phone calls that were allegedly made.
[30] Ms Sithembe’s explanation is further that:
‘On 17 February 2023 I send a reminder email marked extremely urgent to the
client and client responded with the signed affidavit through an email on 20
February 2023. Client had to be pursued again to deliver original documents
for filing with the Labour Court. Numerous reminders were made to the client
through emails send to client on 3 April 2023 and client made a promise
through an email to deliver the original affidavit in a week and was not
received. The original affidavit was only delivered after numer ous follow ups
were made again, in May 2023. The review application was then filed late with
the Labour Court as a result of non-corporation (sic) from the client.’
Once again, Ms Sithembe did not attach any of the ‘numerous follow -up’ emails, nor
did she provide any details as to the other ‘follow-ups’ that were allegedly made.
[31] Be that as it may, it appears from this explanation that the delays which
occurred for the entire month of October, November and December 2022 and
January, March and May 2023 remained unexplained.
[32] This difficulty was picked up by counsel after she was notified in April 2025 of
the set -down date of the review application. Ms Sithembe explained that in April
2025:
‘Counsel advised that we need to account for the late filing of the review
2025:
‘Counsel advised that we need to account for the late filing of the review
application as same was not done. I then advised client and provided counsel
with reasons for late filing on my side through phone call and email. Emails
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communications (sic) were also send to counsel. I then made follow up with
the client to provide reasons for the late filing on his side and advised client
that we should provide reasons for the late filing on his side and advised client
that we should have those reasons urgently and before the hearing. The
intention was to file the supplemented founding affidavit before the hearing
date. Numerous follow up were made to client and there was no response.
The practice note was received from counsel on 2 June 2025. The intention
was to file the supplemented founding affidavit including condonation
application with the practice note, however no response was received from
client.’
The responsible official Ms Sithembe communicated with is Mr Mphuti Peter Matli, of
the Applicant’s employee relations and wellness division.
[33] Ms Sithembe attached an email dated 3 June 2025 , which was sent to
counsel, Ms Mabuza and Mr Matli, stating that:
‘Kindly provide information or explanation for the period between receiving the
application and filing of the review application. We need to urgent (sic) file the
condonation application this week and if possible request for matter to be
removed from the court roll. According to my records counsel send (sic) me
the application on 28 September 2022 and it was emailed to you on 29
September 2022 and was never received back up until a reminder was made
on 17 February 2023. Thereafter the sighed (sic) affidavit was emailed to me
on 20 February 2022 and original document were send to me in April 2023.
Kindly engage counsel urgently so that she may finalise the condonation
application.”
[34] The question is whether the reasons set out supra constitute a
comprehensive, convincing and compelling explanation.
[35] In my view , it does not at all. T he Applicant should provide a full explanation
for every period of the delay , and it is not sufficient to simply list significant events
for every period of the delay , and it is not sufficient to simply list significant events
that occurred during this period. There is no explanation tendered for the period
between September 2022, when the application was drafted, and May 2023, when it
was filed with the R egistrar. What had been presented to the Court is not an
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explanation but rather a vague statement of events, without any supporting proof,
and a clear accusation that the ‘client’ is responsible for the delay.
[36] In fact, the impression created is that neither the State Attorney nor the
Applicant had any interest in ensuring that this matter was pursued timeously and in
compliance with the applicable prescripts. This is a concerning state of affairs given
the fact that the default arbitration award, which was awarded in favour of the
Second Respondent, will no doubt have severe financial consequences for the
taxpayers of this country. This is a matter which should be brought to the attention of
the Applicant’s Minister and Director General , and the management in the office of
the State Attorney.
Prospects of success and prejudice
[37] Having considered that the period of the delay in the filing of the review
application is material and the explanation tendered wholly inadequate, it leaves the
issue of prospects of success.
[38] The Applicant’s case is that this dispute has its genesis in the advertisement
for the position of Director: Financial Accounting. The Second Respondent, Ms
Thindisa, was employed as Deputy Director: Cost and Management Accounting as
from March 2014, and she applied for the advertised position in 2015. She was not
shortlisted or interviewed for the position because she did not meet the
requirements. Upon finding out that someone else had been appointed, Ms Thindisa
referred an unfair labour practice dispute to the Fourth Respondent.
[39] The arbitration was set down for 22 January 2021. On 19 January 2021, the
Applicant’s representatives who were handling the matter, Mr Rakau Malau and Ms
Nosiphiwo Magana, tested positive for COVID- 19 and had to be in quarantine for a
period of ten days. On 20 January 2021, the Applicant informed the GPSSBC of the
situation and requested a postponement. There was no response, and it appeared
situation and requested a postponement. There was no response, and it appeared
that the GPSSBC did not receive the Applicant’s request for a postponement. As a
result, the arbitration proceeded, and a default award was issued on 2 February
2022.
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[40] The Third Respondent (arbitrator) found that the Applicant acted unfairly by
failing to shortlist Ms Thindisa for the position of Director: Financial Accounting, and
he ordered that she be promoted to the said position.
[41] The GPSSBC transmitted the default award to the email address of Mr
Rakau, who had passed away on 25 January 2021 due to COVID, and it was sent to
the incorrect address of Ms Magana. The Applicant only became aware of the
default award on 10 May 2021, whereupon an application for rescission was made.
The rescission application was refused.
[42] The Applicant seeks the review of the rescission ruling on the basis that the
arbitrator failed to consider the explanation tendered and the steps taken to request
a postponement for the arbitration of 22 January 2021, which resulted in the default
award being granted. The Applicant submitted that it has very good prospects of
success as Ms Thindisa did not meet all the requirements for the advertised position,
and it was unreasonable to issue an award that she be appointed when she did not
have senior management experience at the time she applied for the position. The
Applicant seeks an order that the matter be remitted to the GPSSBC for
determination by another arbitrator.
[43] On the issue of prejudice, the Applicant submitted that Ms Thi ndisa will not
suffer any prejudice if the matter is remitted to the GPSSBC for a hearing de novo in
that she did not meet the requirements for the position and will have another
opportunity to present her case, whereas the Applicant never got the opportunity to
respond to Ms Thi ndisa’s allegations and the merits of the case was never fully
ventilated.
[44] Ms Thi ndisa opposed this application and submitted that she is indeed
prejudiced in that her career advancement is stifled.
[45] In my view, the prejudice to the Applicant outweighs Ms Thi ndisa’s prejudice.
If she did not meet the requirements at the time the position was advertised, she
If she did not meet the requirements at the time the position was advertised, she
could not have been appointed in the first place. If she indeed met the requirements,
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same will become evident in a process where the Applicant is also afforded an
opportunity to state its case, and she will get what she deserves.
[46] I cannot lose sight of the fact that this is a matter where an appointment was
made in a government department, which is regulated by specific prescripts and
legislation which apply to the appointment of candidates to positions, more
specifically positions at the senior management level , and compliance with those
prescripts is vital. Furthermore, this matter may have severe financial implications,
which will affect every taxpayer, and therefore it is important that the correct decision
be taken.
[47] The LAC has recently granted condonation where an application was
materially late and the explanation lacking. In Government Printing Works v Public
Service Association and another
10, it was held that:
‘[39] Considering the Act, the basis for the claim and what appears on the
papers, the only conclusion is that the appellant’s prospects of success are
excellent. It must also be accepted that the full ventilation of the dispute is
important to the appellant and, given the legislative framework and the
rationale behind the registration obligation, to broader society. The appellant’s
concern that it will be forced to contravene the Act by employing Mr
Mojananga as a security service provider cannot be ignored.
[40] On balance, the appellant has succeeded in proving that there is good
cause to grant the indulgence sought. The uncontested prospects of success,
in particular, coupled with the importance of the issue, are such that these
factors compensate for the excessive delay and complete inadequacy of part
of the explanation. Considering the relevant factors in their totality, the
interests of justice and fairness are best served by granting condonation.’
[48] In my view, the full ventilation of the dispute is important not only to the
Applicant but to the broader society, given the legislative framework applicable to
Applicant but to the broader society, given the legislative framework applicable to
appointments in government departments. Considering the matter holistically, the
10 (2025) 46 ILJ 915 (LAC).
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interests of justice and fairness will be best served by granting condonation for the
late filing of the review application.
[49] It is unfortunate that this Court is not in a position to decide the review
application, due to the state of the application, as already alluded to.
[50] As I am inclined to grant condonation for the late filing of the review
application, the review application is to be enrolled for hearing. As an alternative, the
parties may consider invoking the provisions of Rule 47 of the Labour Court Rules.
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[51] I reiterate: the manner in which this matter was handled remains an issue of
grave concern, and the State Attorney should see to it that the file is in order as a
matter of priority.
[52] In the premises, I make the following order:
Order
1. The late filing of the review application is condoned;
2. There is no order as to costs.
Connie Prinsloo
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate T Mabuza
Instructed by: State Attorney Pretoria
For the First and Second Respondent: Mr W Mphahlele of the PSA
11 GN 4775 of 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court (effective
17 July 2024).