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THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
NotReportable
Case No: P 35/23
In the matter between:
MNYAMEZELI NXELANE AND 70 OTHERS Applicants
and
CHEP SOUTH AFRICA (PTY) LTD First Respondent
CONTRACTA-FORCE CORPORATE
SOLUTIONS (PTY) LTD Second Respondent
Heard: 23 July 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal_representatives by email and publication on the Labour Court’s
website. The date for hand-down is deemed to be on 23 July 2025
Summary: application for postponement to supplement pleadings in application
for.condonation — application brought on the day matter was to be
heard — application granted in the interests of justice — party-and-party
costs tendered — costs awarded on attorney-and-client scale due to
applicants’ failure to timeously apply for a postponement.
JUDGMENT
2
DE KOCK, AJ
Introduction
[1] This matter came before the court as an application for condonation. The
application was set down on the opposed motion roll for 23 July 2025. On 22 July
2025, the applicant sent an email to the respondents and to the court, advising that
the applicants had not yet filed heads of argument and that the applicants would
seek a postponement on 23 July 2025.
[2] The applicants, on the morning of 23 July 2025, handed to the court»a notice in
which a postponement was sought, accompanied byran affidavit. The respondents
were not afforded an opportunity to deliver any answering affidavits, and the
parties were afforded an opportunity to make submissions in court regarding the
application for postponement.
[3] The respondents, unsurprisingly, objected tothe application for postponement at
such a late stage and requested an order that the application for postponement of
the condonation application be,denied, and for the application for condonation to
be heard.
[4] The court, after hearing arguments, adjourned the application for consideration of
the parties’ respective submissions. Upon reconvening the matter, the court
advised the parties that the application for postponement is granted, and that
reasons will be\provided in due course. The parties were also advised that the
applicants’tendered costs and the respondents’ request that such costs be on an
attorney-and-client scale, including the costs of counsel, will be addressed in the
judgment.
[5] The parties were also requested to agree to a date on which the application for
condonation can be argued, as well as to agree on a timeline in which the parties’
respective further pleadings were to be delivered. The parties have agreed to a
date and the timeline for delivery of further pleadings, which are contained in the
order this court makes hereunder.
3
Reasons for the postponement
[6] The court must firstly state that the way the applicants have been represented by
at least two previous attorney firms insofar as filing an application for condonation
for the late filing of their statement of claim is highly unsatisfactory. This includes
the referral of the dispute to the CCMA for arbitration, despite the reasons for
dismissal being that of the applicants’ participation in an unprotected strike) the
late filing of the statement of case, and the late filing ofan application for
condonation. It also includes a very poor attempt to properly address the factors
required in an application for condonation.
[7] The relevance of the poor attempt made to seek condonation.is that Mr Dyke, in
seeking a postponement, conceded that the application for condonation was poorly
drafted. The essence of the application for a postponement was to allow the
applicants an opportunity to file a further, supplementary affidavit in respect of the
application for condonation. Mr Dyke was briefed at a very late stage, and based
on his advice, it became apparent that vital information had not been included in
the initial application for condonation.
[8] The current firm of attorneys, who appears to have inherited the matter in April
2024, similarlydid‘not give the matter the attention it deserved. One would have
expected that, upon inheriting a matter, the pleadings already filed would be
perusedand a decision be made whether the pleadings are in order, and the matter
is ripeé.for a sét.down. This applies particularly to the application for condonation.
However,.this;was not done. According to the affidavit handed up in court, the
matter was allocated to a professional assistant at the time, who took the
necessary steps to set the matter down for hearing on or about 15 April 2024. No
view appears to have been taken at that time that the application for condonation
was lacking any detail, or that it was necessary to file a further affidavit in support
of the application for condonation. The matter was left pending enrolment.
[9] It is stated that the professional assistant to whom the file was allocated around
April 2024 left the employment of the attorney firm towards the end of 2024.