THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C47/2024
In the matter between:
MASETSABI SETSABI Applicant
and
SYSPRO (PTY) LTD First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
RICHARD HEATH N.O. Third Respondent
Heard: 13 August 2025
Delivered: 18 August 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 1 4
August 2025.
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______________________________________________________________________
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter came before the court as an application to review the condonation
ruling issued by the third respondent on 6 February 2024. The application for
condonation, which was opposed, was determined on the papers placed before the third
respondent. The third respondent dealt with the background of the matter, the degree of
lateness, the reasons for the lateness, prospects of success and prejudice. The third
respondent found that the delay in referring the matter is excessive (176 days late), that
the applicant’s explanation for the delay is neither comprehensive nor persuasive, that
the applicant does not appear to have any prospects of success as she signed a
settlement agreement in full and final settlement, and that taking all factors into account,
including prejudice, that he is unable to grant the application for condonation. The
application for condonation was therefore refused. This led to the review application
before this court.
Applicable test on review
[2] The court notes that there appears to be two lines of thought regarding the
applicable test where a party is seeking to review a jurisdictional ruling. In De Milander v
Member of the Executive Council for the Department of Finance: Eastern Cape and
others
1, the Labour Appeal Court held that:
1 [2012] ZALAC 37; (2013) 34 ILJ 1427 (LAC) at para 24.
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‘Thus the issue before the commissioner, whether or not there had been a
dismissal, was a jurisdictional issue. This means that if there was no dismissal
the bargaining council did not have jurisdiction to entertain the dispute referred to
it by the appellant (SA Rugby Players Association & others v SA Rugby (Pty) Ltd
& others; SA Rugby (Pty) Ltd v SARPU & another
2). The question whether, on
the facts of the case, a dismissal had taken place within the ambit of s 186(1)(b)
involves the determination of the jurisdictional facts. A jurisdictional ruling is
subject to review by the Labour Court on objectively justifiable grounds and not
on the reasonableness test approach as enunciated in Sidumo
3. The test is
whether, objectively speaking, the facts which would give the GPSSBC
jurisdiction to entertain the dispute existed.’
[3] In an appeal against a condonation ruling by the Labour Court, the Labour
Appeal Court in Colett v Commission for Conciliation, Mediation & Arbitration &
others
4 reaffirmed the test adopted by the Constitutional Court in Mabaso v Law
Society, Northern Provinces & another5 to decide such an appeal:
“[29] A court of appeal will not lightly interfere with the exercise of a judicial
discretion by a lower court. An appellant who challenges the exercise of a judicial
discretion will have to show that such discretion was not exercised judicially.
More specifically the appellant will have to show that the court a quo either —
29.1 failed to bring an unbiased judgment to bear on the matter;
29.2 did not act for substantial reasons;
29.3 exercised its discretion capriciously or arbitrarily;
29.4 exercised its discretion upon wrong principle;
29.5 committed a misdirection of such a serious nature and degree as to justify
a conclusion that it acted improperly or unreasonably.
[30] The legal position was summarized as follows by the Constitutional Court:
2 (2008) 29 ILJ 2218 (LAC); [2008] 9 BLLR 845 (LAC) at para 39.
2 (2008) 29 ILJ 2218 (LAC); [2008] 9 BLLR 845 (LAC) at para 39.
3 Sidumo & Another v Rustenburg Platinum Mines Ltd & Others [2007] 12 BLLR 1097 (CC)
4 (2014) 35 ILJ 1948 (LAC)
5 2005 (2) SA 117 (CC)
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'It is trite law that a court considering whether or not to grant condonation
exercises a discretion. The discretion must, of course be exercised judicially on a
consideration of all the facts and "in essence it is a matter of fairness to both
sides". It is clear that the SCA may decide an application for condonation without
considering the merits of the case, though it does so only where there is a gross
and flagrant failure to comply with the rules. Ordinarily, the approach of an
Appellate Court to the exercise of such a discretion is that it will not set aside the
decision of the lower cour t "merely because the Court of appeal would itself, on
the facts of the matter before the lower court, have come to a different
conclusion; it may interfere only when it appears that the lower court had not
exercised its discretion judicially, or that it had been influenced by wrong
principles or a misdirection on the facts, or that it had reached a decision which in
the result could not reasonably have been made by a court properly directing
itself to all the relevant facts and principles.’
[4] In Bosch v Seynhaeve N.O. and others
6 the court held that in such reviews a
court is confined to ascertaining whether the commissioner:
a) failed to bring an unbiased judgment to bear on the matter;
b) did not act for substantial reasons;
c) exercised his discretion capriciously or arbitrarily;
d) exercised his discretion upon wrong principle; or
e) committed a misdirection of such a serious nature and degree as to justify
a conclusion that it acted improperly or unreasonably.
[5] However, in Seunane v SAPS and others
7 the court held that decisions on
condonation were jurisdictional rulings and thus subject to a correctness test. The court
said:
6 (159/2023) [2024] ZALCCT 25 (27 June 2024) at para 29-31 endorsed in Chauke v Commission for
Conciliation, Mediation and Arbitration and others (JR1633/23) [2025] ZALCJHB 232 (21 May 2025).
7 JR1982/24, 5 March 2025 at para 10
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‘It is trite that the dispute to be resolved determines the test to be applied. As a
result, in a review for a jurisdictional dispute, the correctness test must be applied
instead of the ‘reasonableness test’ which applies in review applications.’
[6] The first respondent argued that it is unnecessary for the court to attempt to
resolve the issue in this case, as the application for review must fail regardless of which
review test is applied. Both tests will therefore be considered by this court.
[7] Commissioners are required to consider the representations before them in
support of and against the granting of condonation and exercise their discretion whether
to grant condonation. An applicant is required to show good cause why the late referral
should be condoned. It is trite that a commissioner must determine whether it is in the
interest of justice to condone a late referral, and in doing so consider factors such as the
degree of lateness, the explanation for the delay, prospects of success, prejudice, and
public interest.
[8] This was confirmed in Grootboom v National Prosecuting Authority and another
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where the Constitutional Court held that:
‘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.’
Evaluation of the grounds of review
8 [2013] ZACC 37; (2014) 35 ILJ 121 (CC) at para 51.
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[9] The applicant’s main ground of review is that the third respondent committed a
gross irregularity in that he misconstrued evidence and failed to apply his mind to the
material facts, whilst assuming allegations without fact as accurate. The applicant
alleges that the commissioner failed to have regard to the full complement of evidence,
which resulted in him arriving at an unreasonable conclusion. Had the third respondent
understood the evidence and the question of law before him, he would have come to a
different conclusion.
[10] A major difficulty faced by the applicant is that she is bound by the evidence
placed before the third respondent when he considered the application for condonation.
The applicant introduced new evidence in her founding affidavit filed in support of the
review application, which was never placed before the third respondent. The new
evidence cannot be relied on in support of this review application.
[11] The court notes the increasing number of review applications before this court
where applicants, especially laypersons, are aggrieved that they were not invited to a
hearing to argue the application for condonation. In this case, the applicant completed
the application for condonation without assistance and guidance in anticipation of being
called to a hearing. This, however, never materialised and she received the condonation
ruling after it was considered on the papers.
[12] It may be necessary for the CCMA to reconsider the determination of
condonation applications on paper, especially in instances where an employee is
unrepresented and clearly failed to adequately address the relevant factors to be
considered. The application for condonation that was submitted to the CCMA, by the
applicant, is a typical example of an application which requires more input and
explanation. It may cause substantial prejudice to applicants for condonation, who are
laypersons and who are unable to properly explain themselves on the form provided for
laypersons and who are unable to properly explain themselves on the form provided for
applications for condonation, to place such an application before a commissioner and
for rulings to be made without affording the employees the opportunity to attend an in
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limine process where the employee will be afforded the right to advance the reasons
why condonation should be granted.
[13] The failure to have an in limine hearing then results in review applications before
this court where employees advance further reasons in support of an application for
condonation. Although it is noted that the CCMA has budgetary constraints and a
backlog of cases, by not providing employees with the right to attend an in limine
hearing, this court’s workload is similarly increased by having to set down review
applications where employees raise concerns that they were never invited to a hearing
before a decision was made.
[14] Be that as it may, the court will refrain from determining this review application on
the basis that the applicant was not afforded an opportunity to attend in person and
further advance the reasons why condonation should be granted. Such a ground of
review may potentially in other review applications be favourably considered, as an
employee could be prejudiced by being held to what they stated in the application for
condonation, which was completed without a clear understanding of the importance of
an application for condonation.
[15] In National Education Health and Allied Workers Union (Nehawu) v Metrofile
(Pty) Ltd
9 the Court said:
‘To grant condonation is an exercise of judicial discretion that is only fettered by
being judicially explained. The test is whether the court whose decision is
challenged on appeal has exercised its discretion judicially. The exercise of the
discretion will not be judicial if it is based on incorrect facts or wrong principles of
law or where the court of first instance acted capriciously, or in a biased manner,
or committed a misdirection or an irregularity, or exercised its discretion
improperly or unfairly. If none of these grounds is established, it cannot be said
that the exercise of discretion was not judicial.’
that the exercise of discretion was not judicial.’
9 (2021) 42 ILJ 1914 (LAC) at para 10. See also Chetty v Baker McKenzie (2022) 43 ILJ 1599 (LAC) at
para 7.
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[16] The third respondent, in the condonation ruling, correctly captured the applicant’s
version in respect of the factors considered by him to refuse the application for
condonation. It is undoubtedly so that a late referral of some 176 days is excessive. The
applicant’s explanation for the delay, as stated in the CCMA application for condonation
and as repeated in this court, is not a satisfactory explanation. The third respondent
correctly found this to be the case. The applicant allegedly visited the CCMA of fices in
Cape Town three times only to be informed on every occasion that she does not have a
case, as she signed a voluntary severance package agreement. The applicant then
visited her father in Bloemfontein and went to the Bloemfontein CCMA offices where
she opened a case, which was transferred to Cape Town. The explanation for the delay
is, as correctly stated by the third respondent in his condonation ruling, neither
comprehensive nor persuasive and does not cover every period of the delay.
[17] The third respondent ’s finding in respect of prospects of success cannot be
faulted either, as he based his conclusion on the undisputed fact that the applicant
signed a full and final settlement agreement. The signing of such an agreement brings
into question whether the CCMA, and the third respondent had the required jurisdiction
in the first place to even consider an application for condonation. The applicant
concedes that she never applied for the settlement agreement to be set aside. The third
respondent, however, decided to refer to the settlement agreement under prospects of
success, rather than to dispose of the matter based on the CCMA’s lack of jurisdiction.
In this regard, the court is of the opinion that the commissioner was correct in doing so,
as no jurisdictional issue was taken by the parties and the third respondent was not
required to determine the jurisdiction issue. It would not have been appropriate for the
required to determine the jurisdiction issue. It would not have been appropriate for the
third respondent to dismiss a referral based on the existence of a full and final
settlement agreement until such time that the applicant was afforded the opportunity to
make submissions in that regard. The court will therefore limit the review application to
the issue that the third respondent was required to determine, which is the application
for condonation. I n respect of prejudice, the third respondent states that the applicant
alleges that she “doesn’t know”.
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[18] The third respondent, looking at his ruling and comparing the ruling with the
evidence placed before him, came to both the correct and a reasonable decision and he
exercised his discretion fairly and objectively save for noting the potential prejudices
that an unrepresented employee may be subjected to if applications for condonation are
heard on paper.
[19] In the premises, the following order is made:
Order
1. The application for the condonation ruling to be reviewed and set aside is
dismissed.
2. The first respondent did not ask for costs and no order is therefore made
as to costs.
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: In Person
For the First Respondent: C Bosch
Instructed by: Da Silva Attorney