THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS188/23
In the matter between:
MALETSOKO PAULOS MASHA Applicant
and
ZIZWE OPENCAST MINING (PTY) LTD Respondent
Heard: 15 May 2025
Delivered: 06 August 2025
JUDGMENT
SCHENSEMA, AJ
Introduction
[1] This is an opposed condonation application brought by the applicant for the
late filing of the statement of case.
2
The application to condone the late filing of the review application
Degree of lateness
[2] The applicant referred a dispute to the Commission for Conciliation, Mediation
and Arbitration (CCMA) on the basis of an unfair retrenchment on 8 March 2023. The
matter was conciliated on 30 March 2023 and a certificate of non -resolution was
issued by the Commissioner in which the applicant was directed to refer the dispute
to the Labour Court.
[3] In terms of section 191(11) (a) of the Labour Relations Act
1 (LRA) the
applicant was required to have referred the matter to the Labour Court within 90
days of the certification by the CCMA that the dispute remains unresolved. The
period for filing the statement of case expired on 28 June 2023, the statement of
case was only filed on 24 January 2024 and is accordingly 209 days late.
[4] In respect of the condonation application, the applicant only served his
application on 31 May 2024, 120 days after the statement of case had been filed.
The explanation for the delay
[5] The applicant submits that he consulted with his attorneys of record on 17
April 2023, following which the statement of case was prepared. On 9 May 2023, the
applicant was requested by his attorneys to provide the contact details of the
respondent.
[6] As the applicant was unable to provide the respondent’s contact details, it was
subsequently decided to instruct the sheriff to serve the statement of case. On 11
May 2023, the sheriff of Middelburg was instructed to effect service of the statement
of case.
1 Act 66 of 1995, as amended.
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[7] A further delay was caused as a result of the applicant’s attorneys of record
utilising the South African Post Office to post the statement of case to the sheriff . As
a result, the statement of case was only received by the sheriff on 31 August 2023.
[8] On 23 August 2023, the sheriff advised the applicant’s attorneys of record that
it did not have jurisdiction to serve the documents, despite prior confirmation from
the attorneys, before dispatching the statement of case, that the sheriff did, in fact,
have jurisdiction. In response, the attorneys requested that the sheriff return the
statement of case by post. To date, the statement of case has not been received
from the sheriff.
[9] The applicant ultimately submits that as a result of the collapse of the South
African Post Office that this resulted in the delay in filing the statement of case,
coupled with the fact that the applicant was not in possession of the respondent’s
email address.
Condonation Application
[10] The delay in filing the condonation application was as result of the applicant’s
attorney of record’s non availability due to a heavy workload and court schedule.
[11] The applicant has further submitted that only once he had received the
statement of response did it become clear that a condonation application was
required and he is of the view that in light of the fact that the statement of response
was filed in March 2024, that the condonation application is therefore only two
months late.
[12] In respect of the prospects of success, the applicant in summary is of the view
that the respondent had failed to adhere to the legislative prescripts prescribed by
section 189 of the LRA, which resulted in the applicant simply being dismissed
without the respondent complying with its obligations as set out in section 189 of the
LRA. The prior mass retrenchment did not apply to the applicant as he was
permanently employed by the respondent and in light hereof his dismissal is
permanently employed by the respondent and in light hereof his dismissal is
substantively and procedurally unfair.
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[13] In opposition to the applicant’s condonation, the respondent has provided
extensive background facts to explain how the dispute came about. In summary, the
respondent was contracted as an opencast mining contractor at the Lwala Mine and
the applicant was employed on 25 October 2017 in the position of Excavator Ripper
Operator. In terms of the contract between the respondent and Lwala Mine, the
service agreement would come to end upon the closure of the mine in August 2022.
[14] On 30 March 2022, the respondent issued the section 189(3) notice in terms
of the LRA in respect of which 204 employees were affected as a result of the
closure of the mine. The employees together with the applicant were consulted with
and on 31 March 2022, the respondent requested facilitation at the CCMA .
Numerous facilitated consultations were held, and it was agreed that the
retrenchments would be implemented in a phased approach.
[15] On 28 June 2022 the life of the mine was extended which resulted in a
number of employees contracts being extended. As a result of the mine closure, the
services of the Excavator Ripper Operators were amou ng those who were released
early and the only services that were required were that of the Excavator Bucket
Operators. However, the salary of this position was lower than that of an Excavator
Ripper Operator.
[16] The respondent offered the 4 Excavator Ripper Operators the short -term
positions of Excavator Bucket Operators at a reduced rate for purposes of finishing
off the duties at the mine. The offer was rejected by the applicant. As a result, the
applicant was issued with his retrenchment letter and was further informed that he
would be paid in lieu of his notice period for October 2022.
[17] Upon receipt of the retrenchment letter, the applicant attempted to render
services as an Excavator Bucket Operator, however due to him having previously
rejected this position and further refusing to sign the change of status, the
rejected this position and further refusing to sign the change of status, the
respondent submits that the applicant had not commenced with the short -term
position of Excavator Bucket Operator.
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[18] The applicant subsequently referred an unfair dismissal dispute to the
Bargaining Council for the Civil Engineering Industry. On 26 October 2022, the
dispute was settled, and the applicant agreed to accept a new position at a reduced
rate and, in doing so, withdrew his referral.
[19] Throughout this time, the applicant was well aware that the life of the mine
was coming to an end and on 23 January 2023, the respondent issued the applicant
with a retrenchment letter in which the applicant was inter alia advised that his last
month would be February 2023. The mine closed on 28 February 2023, thereafter
which the applicant referred a dispute to the CCMA claiming an unfair retrenchment.
[20] The respondent further inter alia submits that the Labour Court lacks
jurisdiction to determine the alleged procedural unfairness of the retrenchment on
the basis of section 189A(13) of the LRA.
Analysis of the condonation application for the late filing of the statement of case
[21] 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 to all
these factors.
[22] In A Hardrodt (SA) (Pty) Ltd v Behardien and others
2 (Hardrodt) the Labour
Appeal Court (LAC) restated the guidelines laid down in Queenstown Fuel
Distributors CC v Labuschagne NO and others3 and held inter alia that there must be
good cause shown 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
time periods must be compelling. The onus is on the applicant to satisfy the Court
that condonation should be granted.
2 (2002) 23 ILJ 1229 (LAC).
3 (2000) 21 ILJ 166 (LAC).
6
[23] The general principles applicable to deciding applications for condonation
apply even more stringently when it comes to review applications. In National Union
of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco
Group) and others4 (Thilivali), the Court said:
‘What is clear from the judgment in Hardrodt is that general principles
applicable to condonation applications are even more stringently applied
where it comes to a condonation application for the late filing of a review
application. In review condonation applications, the explanation that needs to
be submitted must be compelling and the prospects of success need to be
strong. Where it comes to the issue of prejudice, the applicant in fact has to
show that a miscarriage of justice will occur if the applicant’s case is not
heard. The reason for these more stringent requirements is that review
applications occur after the parties have already been heard, presented their
respective cases and a finding has been made. Under such circumstances,
considerations of justice, fairness and expedition require that challenges of
such findings must not be delayed and must be completed as soon as
possible.’
[24] 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. The fundamental requirement for expedition cannot
be ignored.
[25] 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 Thilivali:
5
‘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
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
4 (2015) 36 ILJ 232 (LC) at para 22.
5 Thilivali at para 25.
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determination of the issue of good cause must always be conducted against
the back drop of this fundamental principle in employment law.’
[26] 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.
[27] Notwithstanding the aforementioned principle, a measure of flexibility has
been applied where required in the interests of justice. In National Education Health
and Allied Workers Union obo Mofokeng and Others v Charlotte Theron Children’s
Home
6 it was determined that, in the interest of justice, the case should proceed, as
the policy in question appeared to be deeply 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.
[28] In the matter of Government Printing Works v Public Service Association and
another
7 the LAC held that:
‘[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 facts 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
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
6 [2004] 10 BLLR 979 (LAC).
7 [2025] 2 BLLR 112 (LAC) at para 26.
8
is not necessarily limited to those mentioned above. The particular
circumstances of each case will determine which of these factors are relevant.
(own emphasis)
[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
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
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.’
[29] It is in this context that the application for condonation stands to be
determined.
Explanation for the delay
[30] It is trite that a failure to comply with the timeframes must be explained and
the reasonableness of the delay should be considered by having regard to the
the reasonableness of the delay should be considered by having regard to the
explanation for the delay.
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[31] The explanation for the delay has to be compelling, convincing and
comprehensive and should cover every period of the delay. 8 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.
[32] The facts before this Court required the applicant to provide an explanation for
the entire period of the delay, i.e. from 28 June 2023 to 31 May 2024.
[33] The applicant inter alia relies on the delay by the South African Post Office for
the late filing of the statement of case in that he was unable to obtain the
respondent’s email addresses for service, this notwithstanding the fact that the
respondent’s email address is recorded in annexures “N1” to “N4”. These annexures
relate to the withdrawal by the applicant in respect of his first referral and clearly
reflects the respondent’s email address.
[34] It is therefore implausible that the applicant was not in possession of the
respondent’s email address.
[35] No explanation has been provided for the period between May 2023 and
August 2023. Furthermore, the applicant has failed to explain why it was necessary
for the sheriff to return the statement of case by post to the applicant’s attorneys of
record in order to effect service on the respondent, and why a new statement of case
was not simply issued and served on the respondent via email.
[36] No explanation is provided for the period from September 2023 to January
2024.
[37] The delay is further compounded by the fact that the applicant only filed his
condonation application in May 2024. It is trite that an application for condonation
must be brought as soon as it was discovered that it would be necessary to bring
8 Van Wyk v Unitas Hospital and Another 2008 (4) BCLR 442 (CC).
10
such an application, and this fact should have been clear to the a pplicant by 31
August 2023 when the sheriff of Middleburg confirmed t hat they had received the
statement of case and that it did not have jurisdiction to serve the statement of case.
The condonation application was however only filed on 31 May 2024.
[38] No explanation has been provided by the applicant for this excessive delay ,
other than to state that the applicant only became aware that a condonation
application was required upon receipt of the respondent’s statement of response.
[39] The applicant has failed to discharge the onus to show good cause why the
indulgence sought should be granted. The delay is excessive and required an
extensive explanation, which the applicant has failed to provide.
Prospects of Success
[40] In light of the excessive delay and the explanation provided not being
compelling or even adequate, it leaves the issue of prospect of success.
[41] With reference to the aforementioned authorities, the Courts have affirmed
that where there is a failure to provide a comprehensive, compelling, or convincing
explanation for a material period of the delay, the prospects of success become
irrelevant and need not be considered.
[42] The excessive delay required the applicant to provide a detailed and
acceptable explanation, which the applicant failed to give. The reasons provided by
the applicant, cannot be considered reasonable or even acceptable under the
circumstances.
Prejudice
[43] The applicant submits that the respondent would not be prejudiced were the
late filing of the statement of case to be condoned on the basis that the pleadings
have already been finalised and the only outstanding issue that remains is the
convening of the pre-trial conference and the filing of the pre-trial conference minute.
11
[44] On the other hand the respondent submits that it would be severely
prejudiced were condonation to be granted as it would be financially prejudiced in
that it would be required to engage the services of legal practi tioners to deal with the
matter.
[45] The Constitutional Court in the opening paragraph of Toyota SA Motors (Pty)
Ltd v Commission for Conciliation, Mediation and Arbitration and Others
9 held that:
‘Time periods in the context of labour disputes are generally essential to bring
about timely resolution of the disputes. The dispute- resolution dispensation of
the old Labour Relations Act was uncertain, costly, inefficient and ineffective.
The new Labour Relations Act (LRA) introduced a new approach to the
adjudication of labour disputes. This alternative process was intended to bring
about the expeditious resolution of labour disputes, which by their nature,
require speedy resolution. Any delay in the resolution of labour disputes
undermines the primary object of the LRA. It is detrimental not only to the
workers who may be without a source of income pending the resolution of the
dispute but, ultimately, also to an employer who may have to reinstate
workers after many years.’
[46] This Court exercises a discretion that must be applied judicially, based on the
specific facts of each case, and ultimately guided by considerations of fairness to
both parties. While refusing to condone the late filing of the statement of case will
prevent the applicant from pursuing the matter before this Court, the prejudice to the
respondent outweighs the prejudice suffered by the applicant.
[47] For the afore stated reasons, I am of the view that no basis has been
established by the applicant to justify its shortcomings in the condonation application
to be overlooked in the interests of justice.
Costs
9 (2016) 37 ILJ 313 (CC) at para 1.
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[48] This Court has a wide discretion insofar as the awarding of costs is
concerned, and the principle that costs ought to follow the result does not, as a rule
or general principle, apply in the Labour Court.
[49] I am of the view that this is a matter in which no costs ought to be awarded.
[50] In the premises, the following order is made:
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 Applicant: Mr MC Mathabathe
For the Respondent: Advocate M Lukhele (Trust Account Advocate)