THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR2666/2022
In the matter between:
LUCKY PHILLIP NGOBENI Applicant
and
ESKOM HOLDINGS SOC LIMITED First Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
COMMISSIONER STEPHENS SHEMA MOLAPO N.O. Third Respondent
Heard: 20 June 2025
Delivered: 03 September 2025
Summary: Review of arbitration award filed outside the prescribed period of
six weeks – condonation for late filing of the supplementary affidavit and
condonation application opposed – principles considered – discretionary
powers cannot be exercised in a vacuum – application for condonation
refused.
JUDGMENT
2
PHAKEDI, AJ
Introduction
[1] The Applicant approached this Court on 29 November 2022 in terms of
section 145 of the Labour Relations Act 1 (LRA) seeking to review and set aside the
arbitration award issued by the third respondent under case number GAJB2270/21
dated 12 January 2022. The Applicant further seeks an order condoning the late
filing of his review application and the late filing of his notice in terms of Rule
7A(8)(a)2. These three applications are opposed by the first respondent.
Condonation application
[2] The arbitration award is dated 12 January 2022, and the Applicant received it
on the same day. He then consulted with Mr Mbodi of NUMSA on 20 January 2022.
During their discussions , he raised his concerns about the award and sought that it
be challenged. They then agreed to seek a mandate from NUMSA to launch the
review application. Mr Mbodi informed him a week later that NUMSA had agreed to
launch the review application.
[3] On or about 13 July 2022, he then sent correspondence to Mr Mbodi to check
the progress on the matter , but he did not respond. On 6 September 2022, he sent
an email to Mr Mbodi making a follow -up, and that is when Mbodi responded ,
confirming that the review application was never launched. He further indicated that
he had been on sick leave since June 2022.
[4] He stated further that he did not have the money to instruct an attorney to
assist him with the review application. On or about 30 October 2022, he
communicated with a certain Mr Mokoena, who advised that he did not handle labour
1 Act 66 of 1995, as amended.
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
3
matters. He further advised him to raise money for a consultation so he could get
assistance. He was further informed that he should obtain reasons from the Union as
to why they delayed in the filing of his application.
[5] On or about 10 November 2022, he contacted NUMSA Head Office, wherein
he was directed to one Mr Vivani Shexi, the Regional Legal Officer, who advised that
the review application had no prospects of success and, as a result, NUMSA would
not proceed with the review application.
[6] On or about 23 November 2022, he then met his current legal representatives
and consulted on the same date, whereby he gave instructions for them to proceed
with the review application.
[7] In respect of prospects of success, he submitted that his grounds for review
be incorporated into the condonation application. On the issue of prejudice, he
submitted that he will be severely prejudiced if his condonation application is not
condoned, as he is currently unemployed and his dismissal was both procedurally
and substantively unfair.
[8] On or about 9 June 2023, the applicant filed his supplementary affidavit and
amplified his condonation application by stating that his legal representatives
received a notice from the Registrar advising them that the record of arbitration was
available for collection on 20 December 2022, and he duly filed the record on 17
March 2023. However, a notice in terms of Rule 7A(8) was filed out of time. His
explanation for the late filing of the notice is that he did not have money to settle
invoices of transcribers and his attorneys’ legal fees. He was only able to settle these
fees on 30 May 2023.
[9] The first respondent is opposing the condonation application on the basis that
the reading of the email correspondence between the applicant and Mr Mbodi does
not support his version that there was an agreement to launch the review application.
It is s ubmitted that Mr Mbodi had indicated clearly that the decision to launch the
It is s ubmitted that Mr Mbodi had indicated clearly that the decision to launch the
review application was not his to make, and it was to be made by the legal
4
department upon his finding an error with the arbitration award; as such, there was
no undertaking to launch the review application.
[10] Furthermore, the first respondent submitted that a period of 140 days had
passed between 23 February 2022 and 13 July 2023 , and the applicant did not
provide any explanation for this period.
[11] The first respondent submitted that a further period of 54 days passed
between 6 September 2022 and 30 October 2022. Furthermore, the applicant did
nothing for a period of nine days between 30 October and 10 November 2022, and
he has not provided any explanation of what transpired during this period; as such,
he failed to provide a full explanation for the delay , and the condonation application
must be dismissed on this basis.
[12] The condonation application is further opposed on the basis that the applicant
failed to plead and outline any prospects of success in the application. The applicant,
in his replying affidavit , merely stated that he reiterates what is stated under the
condonation rubric of his founding affidavit and did not respond to the averments
made in the first respondent’s affidavit.
[13] The Labour Court is a creature of statutes and derives its powers and
jurisdiction from the LRA. In order to exercise its review powers, it must have
jurisdiction to entertain the application. Furthermore, an Applicant in a condonation
application has to show good cause that he is deserving of the Court’s indulgence for
his non-compliance with its rules and the law.
Applicable legal principles
[14] Section 145(1A) of the LRA provides that ‘ the Labour Court may on good
cause shown condone the late filing of an application in terms of subsection (1).’
[15] It is trite that in considering an application for condonation, the Labour Court
exercises a discretion which must be exercised judicially , premised on all the
5
relevant factors such as good cause, length of delay, explanation for delay,
prospects of success, interests of justice and prejudice.
[16] The onus of showing the existence of good cause in a condonation
application rests with the applicant, and this essentially entails satisfying the two
well-established requirements, namely: (a) providing a satisfactory explanation for
the delay; and (b) showing the prospect of success in the main case. The applicant
bears the burden of showing good cause. A mere allegation of good cause will not
be sufficient to assist the Court in exercising its discretion whether to grant
condonation or not. In other words, as stated in Standard General Insurance Co Ltd
v Eversafe (Pty) Ltd and Others
3, the applicant must “at least, furnish an explanation
of his default sufficiently full to enable the court to understand how it really came
about and to assess his conduct and motives… Where there has been a long delay,
the court should require the party in default to satisfy the court that the relief sought
should be granted”.
4
Evaluation
[17] The Applicant submitted that although the degree of lateness for both
condonation applications is long, the explanation is reasonable and covers the full
period, and the Applicant enjoys strong prospects of success in the review
application. The reasons for the delay are merely that the Applicant had financial
constraints, and this led to the late filing of his review application and the notice in
terms of Rule 7A (8) together with the supplementary affidavit.
[18] As stated above, the first respondent submitted that the Applicant failed to
provide a reasonable and acceptable explanation for the period of delay between 23
February 2022 and 13 July 2023; 6 September 2022 and 30 October 2022, and 30
October and 10 November 2022. The Applicant, in his replying affidavit, chose not to
deal with the issues raised, and as such,
the averments and allegations made by the
deal with the issues raised, and as such,
the averments and allegations made by the
first respondent in its answering affidavit remain unchallenged.
3 2000 (3) SA 87 (W) at para 12.
4 Aspen Holdings Pty Ltd and Another v Phelane and Another (Aspen Holdings) [2025] 4 BLLR 409
(LAC) at para 14.
6
[19] The first respondent also rejects the applicant’s submission that he launched
his review application outside the prescribed timeframes as a result of a lack of
funds. In his condonation application, the Applicant merely claims that he did not
have money to instruct attorneys , and he did not approach Legal Aid South Africa
because he thought they only dealt with criminal matters. The Applicant did not take
the Court into confidence and paint a full picture of his finances.
[20] The Applicant also failed to at least explain why he could not approach friends
and relatives to assist with payment of his legal fees seeing that he was dismissed
as a result of his failure to disclose that his daughter was in charge of a company
which belonged to his family member , and it was doing business with the first
respondent, albeit not within his area of jurisdiction.
[21] In Du Plessis v Wits Health Consortium (Pty) Ltd
5, the Labour Court per
Molahlehi J (as he then was) explained what is expected of an applicant who seeks
condonation from the Court on the basis of financial constraints and held:
‘[16] It is clear from the above and other judgments that a claim of lack of
funds on its own cannot constitute reasonable explanation for the delay. In
other words, when pleading lack of funds as the cause of the delay, the
applicant needs to provide more than a mere claim that the reason for the
delay is lack of funds. In this respect, the applicant has to take the court into
his or her confidence in seeking its indulgence by explaining “when” not only
that he or she finally raised funds to conduct the case but also how and when
did he or she raise those funds. The “when” aspects of the explanation is
important as it provided the courts with the information as to whether there
was any further delay after raising the funds and whether an explanation has
been provided for such a delay.
[17] …. In the present case, the applicant does not take the court into her
[17] …. In the present case, the applicant does not take the court into her
confidence by providing a full and proper explanation as how and when did
she raise the funds. She also does not explain why she could not use the
money she received from the retrenchment package to pay her attorneys. If
5 [2013] JOL 30060 (LC).
7
she needed to use that money for other purposes, she does not explain why
could she not pay her attorneys or other attorneys to assist her only with the
drafting of the statement of case…’
[22] Although the delay is not fully explained and it is not insignificant, the Court is
further required to consider the prospects of success and related factors.
[23] The basic principle in our jurisprudence is that in order to properly deal with
condonation applications, the Court must consider all the factors , including the
degree of lateness and explanation thereof, prejudice, the interests of justice,
prospects of success, as well as the importance of the case to both parties.
[24] In his application for condonation, the Applicant submitted that he has strong
prospects of success in the review application. He did not specifically outline those
strong prospects, and the Court had to consider the review application in order to
determine on what basis he is alleging that the arbitration award is reviewable on
any of the grounds advanced.
[25] The Applicant stated that the Arbitrator committed a gross irregularity by
failing to take into account that he was not aware that his daughter was appointed
director of MTK following the passing of his cousin. It was further submitted that the
arbitrator failed to determine the fairness of the sanction of dismissal , and he could
have done this by ensuring a proper balance between the aggravating factors
submitted by the First Respondent against the mitigating factors submitted by him.
He also failed to con sider whether the employment relationship had irretrievably
broken down or not.
[26] The First Respondent submitted that what is sufficient is that the Applicant
was given an opportunity to state his case and challenge the evidence submitted by
the First Respondent . It was submitted further that the Applicant was required to
declare that his daughter had taken over as the new director of MTK following the
declare that his daughter had taken over as the new director of MTK following the
passing of his cousin. His daughter was listed as a beneficiary on his medical aid,
and this demonstrates that they had a close relationship. The applicant was
8
dismissed for breaching the policy of the First Respondent, and the conclusions
reached by the commissioner fall within the bands of reasonableness.
[27] It was further submitted that the failure by the Applicant to declare this
relationship is akin to dishonesty , and the sanction of dismissal was appropriate.
Having regard to submissions by both parties, this Court comes to the conclusion
that the application for condonation must not be granted.
[28] I have considered the prospects of success advanced by the Applicant in this
matter, and I do not believe that there is a need to interfere with the arbitration
award. The conduct of the Applicant is akin to what is stated in Impala Platinum Ltd v
Jansen and Others
6 where the Labour Appeal Court (LAC) held that:
‘The c ommissioner rightly found that Jansen’s conduct went to the root of the
employment relationship deserving of the severest sanction. This cannot be
faulted. In fact, it would be unfair to expect the appellant to retain Jansen in its
employ where Jansen had not only displayed gross misconduct in failing to
comply with statutory regulations but also contravened the duty to act in good
faith by promoting his wife’s business to appellant’s service providers thereby
compromising fairness and honesty within the appellant’s business
relationships. In the circumstances, there was no need to lead any evidence
of a breakdown in the relationship, as it was obviously the case. …’
Condonation principles
[29] The LAC in Govender v Others v Commission for Conciliation , Mediation and
Arbitration and Others
7 expanded the above-mentioned principles and held that:
‘[57] … The factors relevant in the consideration of the grant or refusal of
condonation include the degree of lateness, the explanation therefor, the
prospects of success and the importance of the case. And in certain cases,
the interest of justice may play a role.
[58] Added to the factors applicable to condonation applications is the
[58] Added to the factors applicable to condonation applications is the
consideration that employment disputes should be dealt with expeditiously as
6 (2017) 38 ILJ 896 (LAC) at para 20.
7 [2024] 5 BLLR 453 (LAC).
9
a delay in the resolution of labour disputes undermines the object of the LRA
and “any determination of the issue of good cause must always be considered
against the backdrop of this fundamental principle” and further that review
applications are by their nature, urgent and must be treated with a degree of
diligence and promptness.’
[30] The LAC in Lekhesa: In re Ngwenya v Trustees for the Time being of Sishen
Iron Ore Co Community Development Trust and another
8 stated:
‘The grant of condonation involves the exercise of a discretion, with a decision
to condone a party's non- compliance with the rules of the court or directions
constituting an indulgence granted by the court. Such an application should
be granted if, having regard to the particular circumstances of the matter, it is
in the interests of justice to do so, and refused if it is not. To reach a decision,
regard is to be had to factors including the nature of the relief sought, the
extent and cause of the delay, the reasonableness of the explanation for the
delay, the importance of the issue to be raised, issues of prejudice and the
prospects of success. As a general proposition, the factors to be considered
are not individually decisive of an application for condonation but are all
considered to determine what is in the interests of justice.’
[31] The LAC further restated the above- mentioned condonation principles in
SACCAWU obo Letsoalo and Another v Commission for Conciliation, Mediation and
Arbitration and Others
9 where it was held that:
‘[18] It is well accepted that condonation cannot be had for the mere asking
but a plea for the court’s indulgence to excuse the non- compliance with the
prerequisite time limits in terms of the prescripts on sufficient cause shown.
The yardstick is the interest of justice which entails a consideration of all the
relevant factors, including the extent and cause of the delay; the effect of the
delay on the administration of justice and other litigants; the reasonableness
delay on the administration of justice and other litigants; the reasonableness
of the explanation for the delay; the importance of the issue to be raised in the
8 (2024) 45 ILJ 1220 (LAC) at para 14.
9 (JA 155/23) [2025] ZALAC 12 (30 January 2025).
10
intended appeal; and the prospects of success. Ultimately, the particular
circumstances of each case will determine which of these factors are relevant.
[19] Added to the general principles, in Steenkamp and Others v Edcon
Ltd, the Constitutional Court endorsed the Labour Law -specific factors and
considerations which are premised on one of the primary objects of the LRA
to have labour disputes resolved expeditiously. Since labour disputes are
inherently urgent, the LRA imposes strict time limits within which various
applications and referrals must be launched to give effect to the primary
object of the LRA. As a result, and pertinent to the case at hand, condonation
in a case of disputes over individual dismissals will not readily be granted
unless, inter alia, the explanation for non- compliance is compelling. What is
more, a higher threshold has been set where the delay is attributed to the
internal processes and procedures of trade unions.
[20] …
[21] In Government Printing Works, this Court likewise was confronted with
the Labour Court's refusal to condone the late delivery of the statement of
opposition against a claim of unfair discrimination. The Labour Court opined
that, given the extent of the delay and the unreasonable explanation, it was
not enjoined to consider the prospects of success. The approach followed by
the Labour Court to condonation was rejected as it is at odds with the broad
and balancing approach that has emerged in our jurispr udence which is
characterised by proportionality and flexibility. The following observations are
pertinent:
“[28] The endorsement of these sentiments in Steenkamp highlights its
significance. Steenkamp’s single-sentence synthesis of the majority and
minority expressions in Grootboom appears to put the settled approach
beyond doubt:
“All factors should therefore be taken into account when assessing whether it
is in the interests of justice to grant or refuse condonation.”
is in the interests of justice to grant or refuse condonation.”
[29] The effect is that an approach which completely ignores the prospects
of success on the merits whenever there is an unsatisfactory, unreasonable or
unacceptable explanation for a delay, requires explication. There does come
a time in any case where a party’s disregard for procedure and delay in
pursuing a matter is so extensive that they will be penalised irrespective of the
11
merits of the case. The SCA has confirmed that an assessment of prospects
of success is a relevant factor in the exercise of a discretion regarding
condonation, unless the cumulative effect of the other relevant factors in the
case is such as to render the application for condonation ‘obviously unworthy
of consideration’. It is in cases of ‘flagrant’, ‘gross’ breaches of the rules,
especially in the absence of an acceptable explanation, that condonation may
be refused regardless of the merits of the appeal, even where the blame lies
solely with the legal representative. In this court, it has been acknowledged
that excellent prospects of success lead to the granting of condonation even
when the delay is substantial and the explanation inadequate.
[30] Assuming that there remains some scope to ignore the prospects of
success completely, doing so requires careful and deliberate analysis.
Borrowing from the language supported in Steenkamp, it is first necessary to
conclude, with due deliberation, that the delay is ‘unacceptably excessive’.
Secondly, and accepting that the reference to ‘no explanation for the delay’ is
not to be construed literally, consideration must still be given to whether the
explanation offered is tantamount to an absence of a full and reasonable
(acceptable, sufficiently cogent) explanation for the delay. It should be clear,
when considering the explanation offered, that the non- observance of the rule
is ‘flagrant and gross’ before the inquiry into the prospects of success may be
jettisoned. Thirdly, and noting the usual reluctance to do so, the court must
exercise a discretion to refuse condonation without any consideration of the
prospects of success.” [Own emphasis]
[22] Government Printing Works aptly expounded the applicable general
principles for condonation and dealt with a misconception that once an
applicant fails to proffer a reasonable explanation for the excessive delay,
prospects of success are of no consequence and could be automatically
prospects of success are of no consequence and could be automatically
discounted. …’
[32] In Grootboom v National Prosecuting Authority and Another
10, the
Constitutional Court stated as follows:
10 (2014) 35 ILJ 121 (CC) at para 51.
12
‘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.’
Conclusion
[33] The Applicant has not succeeded in showing good cause entitling him to be
pardoned for his failure to comply with the period prescribed for the filing of review
applications. As such, the Labour Court does not have jurisdiction to consider the
review application on the merits.
Costs
[34] The first respondent sought costs in the event that the application is
dismissed. It is trite that the awarding of costs in the Labour Court is discretionary as
envisaged in section 162 of the LRA. The Constitutional Court in Long v South
African Breweries
11 held as follows:
[27] It is well accepted that in labour matters, the general principle that
costs follow the result does not apply. This principle is based on section 162
of the LRA, which reads:
“(1) The Labour Court may make an order for the payment of costs,
according to the requirements of the law and fairness.
11 2019 (5) BCLR 609 (CC).
13
(2) When deciding whether or not to order the payment of costs, the
Labour Court may take into account —
(a) whether the matter referred to the Court ought to have been referred to
arbitration in terms of this Act and, if so, the extra costs incurred in referring
the matter to the Court; and
(b) the conduct of the parties —
(i) in proceeding with or defending the matter before the Court; and
(ii) during the proceedings before the Court.”
[28] The relationship between the general principle of costs and section 162
was considered and settled by this Court in Zungu:
“In this matter, there is nothing on the record indicating why the Labour Court
and Labour Appeal Court awarded costs against the applicant. Neither court
gave reasons for doing so. It seems that both courts simply followed the rule
that costs follow the result. This is not correct.”’
[35] The Constitutional Court in Booi v Amathole District Municipality and Others
12,
dealt with the issue of costs in the Labour Court and held as follows:
‘However, this is a labour matter and this Court’s jurisprudence is settled: the
ordinary rule that costs follow the result does not apply in labour matters.
Rather, what emerges from the provisions of the LRA and the jurisprudence is
that courts, when awarding costs in labour disputes, must consider what
fairness demands and err on the side of not discouraging parties from
approaching the courts for the peaceful resolution of labour disputes. Further,
if costs are to be awarded in labour matters, there must be reasons that justify
a court’s decision to depart from the position that a losing party should not be
mulcted in costs in labour disputes.’
[36] The above-mentioned principle was clearly espoused in Member of the
Executive Council for Finance, KwaZuluNatal v Dorkin N.O and another13 where the
Court held:
‘In making decisions on cost orders this Court should seek to strike a fair
balance between, on the one hand, not unduly discouraging workers,
balance between, on the one hand, not unduly discouraging workers,
12 (2022) 43 ILJ 91 (CC) at para 60.
13 2008 (29) ILJ 1707 (LAC) at para 19.
14
employers, unions and employers’ organisations from approaching the Labour
Court and this Court to have their disputes dealt with, and, on the other,
allowing those parties to bring to the Labour Court and this Court frivolous
cases that should not be brought to court. That is a balance that is not always
easy to strike but, if the court is to err, it should err on the side of not
discouraging parties to approach these courts with their disputes. In that way
these courts will contribute to those parties not resorting to industrial action on
disputes that should properly be referred to either arbitral bodies for arbitration
or to the courts for adjudication.’
[37] Based on the above authorities, this court comes to the conclusion that it is in
the interests of the law and fairness that each party be burdened with its own costs.
[38] In the result, the following order is made:
Order
1. The application for condonation of the late filing of the review
application is dismissed.
2. There is no order as to costs.
GC Phakedi
Acting Judge of the Labour Court of South Africa.
Appearances:
For the Applicant: S Mabaso of S Mabaso Inc Attorneys
For the Respondent: Adv V Mndebele
Instructed by: Tembe Kheswa Nxumalo Incorporated