THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C27/2025
In the matter between:
NTOMBOZUKO MJELO AND OTHERS Plaintiffs
and
HISENSE MANUFACTURING SA (PTY) LTD Defendant
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 8
August 2025.
JUDGMENT
2
DE KOCK, AJ
Introduction
[1] This matter came before the court as an application for the late filing of the
statement of claim to be condoned. The application was opposed and set down as an
interlocutory application separate from the trial proceedings. The court was advised that
one of the plaintiffs, Ntombozuko Mjelo, has advised that she is no longer interested in
pursuing the dispute. Mjelo will therefore no longer be regarded as one of the plaintiffs
in this matter.
Degree of lateness
[2] The plaintiffs were dismissed on 30 September 2023. The dispute was referred
to the CCMA within the prescribed 30- day period, and a certificate of non- resolution of
the dispute was issued on 19 March 2024. The statement of claim was to be delivered
within the prescribed 90- day period, i.e., on or before 17 June 2024. The statement of
claim was only served on 12 February 2025, which makes the referral of the dispute to
the Labour Court late by seven and a half months. It is not in dispute that the degree of
lateness is substantial, especially viewed in the c ontext that labour disputes must be
resolved speedily.
Explanation for the delay
[3] The plaintiffs commence their explanation for the delay by stating that they were
at all material times under the bona fide impression that their trade union, NUMSA, had
referred their dispute to the Labour Court for adjudication within the statutory time
periods. They were aware that the Labour Court referral was a long process and that
they were patiently awaiting the outcome.
3
[4] On 21 January 2025, the plaintiffs were called to a meeting at NUMSA’s Atlantis
Local Branch offices and informed for the first time that their dispute was never referred
to the Labour Court. Present at this meeting was a NUMSA official, Mr. Alfredo Smit,
and an attorney representing NUMSA, Mr. Minnaar Niehaus, who informed them that
the dispute was never referred to the Labour Court. According to the deponent, they
attended the meeting under the impression that they were to receive an update as to
when their matter was to be heard in court.
[5] It became clear during this meeting, duly amplified with more detailed information
obtained after the meeting and further amplified with the inescapable inferences drawn
from the information received, that they fell victim to internal factionalism and political
battles within NUMSA. I ntense internal battles occurred in the build up to NUMSA’s
National Congress in 2022 to gain control over the union. Reference was made to
Labour Court and Labour Appeal Court judgments in support of the internal battles
within NUMSA with the Labour Court referring to “an atmosphere of untrammeled
leadership issues”.
[6] The Western Cape Region, under leadership of the regional secretary (Luvuyo
Lufele) and the regional committee, were most prominent in driving the dissent within
NUMSA. Consequently, Lufele was suspended and subsequently dismissed with a
pending dismissal dispute in the CCMA, and NUMSA’s Western Cape Region was
placed under administration in terms of NUMSA’s constitution. Two administrators were
appointed to co- administer the region in the interim, which was still the situation when
the founding affidavit w as deposed to. Internal disciplinary hearings of various NUMSA
office bearers were also still being conducted when the founding affidavit was deposed
to.
[7] The events surrounding the 2022 National Congress, referring to the dissent and
struggles within NUMSA, continued, especially in the Western Cape Regional Executive
struggles within NUMSA, continued, especially in the Western Cape Regional Executive
Meeting scheduled for March 2023. At that point in time certain individuals within
NUMSA actively embarked upon a campaign to undermine NUMSA’s leadership by way
4
of inter alia orchestrating mass resignations from NUMSA. A WhatsApp group called
“Send me Baba” was formed, which called for or attempted to mobilise NUMSA
members to resign from NUMSA and to join a new rival union of which the NUMSA
Atlantis Local Branch was apparently central to the campaign. More specifically, there
was an active campaign within the respondent’s specific workplace to secure mass
resignations from NUMSA. This was in fact quite effective in that various resignations
occurred.
[8] The deponent states that the plaintiffs were not involved in these internal
struggles and factionalism and did not form part of those who resigned their
membership from NUMSA. It is alleged that, with benefit of hindsight , the inescapable
conclusion is that the plaintiffs were apparently seen as being part of one faction who
supported NUMSA’s existing leadership. It als o appears, after the fact, that Mr. Smit,
who had represented the plaintiffs in the section 189 process, was likewise seen as
being part of the faction supporting the existing NUMSA leadership. It also, in hindsight,
became patently clear to the plaintiffs that, unbeknown to them, they were sacrificed in
an endeavour to settle internal scores. Mr. Smit duly referred an unfair dismissal dispute
on the plaintiff’s behalf to the bargaining council for conciliation.
[9] However, it does not fall within Mr. Smit’s ambit of responsibilities and powers to
thereafter refer the matter to the Labour Court for adjudication. This is an issue which is
dealt with by NUMSA’s Regional Legal Officer who worked under the direct supervision
of Mr. Lufele, a prominent figure representing the dissenting group within NUMSA. Mr.
Smit duly referred the plaintiff’s matter to the NUMSA Regional Legal Officer for same to
be referred to the Labour Court for adjudication.
[10] However, unbeknown to the plaintiffs , the Regional Legal Officer refused to refer
the matter to the Labour Court claiming that they had no claim in that Mr. Smit had
the matter to the Labour Court claiming that they had no claim in that Mr. Smit had
allegedly compromised their claim given that he had allegedly not replied to the
defendant’s last communication in the section- 189 process. Consequently, the
defendant closed the consultation process and implemented dismissals. The deponent
5
states that it now appears that there had been a stand- off between the NUMSA
Regional Legal Officer and Mr. Smit relevant to the plaintiff’s case in an apparent
attempt to set Mr. Smit up for failure. The plaintiffs were advised that Lufele was later
dismissed and that the Regional Legal Officer had very recently resigned.
[11] The deponent states that they were advised that Mr. Smit made various attempts
to get an audience with the Regional Interim Administrators in an endeavour to get them
to overrule the Regional Legal Officer. Meetings initially arranged were cancelled and
when Mr. Smit eventually managed to bring the matter to the attention of the Interim
Administrators, they remained indecisive in an apparent attempt to keep all factions
within the Region satisfied. The plaintiffs were not aware of this at the time.
[12] Mr. Smit also advised the plaintiffs , after the fact that he was not making any
progress with the Interim Administrators , that he brought the issue to the attention of
NUMSA’s General Secretary, Mr. Irvin Jim, when he had the opportunity to do so during
a break in a meeting held in Cape Town in October 2024. Mr. Jim apparently instructed
Mr. Smit to forward all relevant documentation to one of NUMSA’s attorneys, Mr.
Niehaus, who is based in Gqeberha.
[13] Mr. Smit duly complied, and he had some further interactions with Mr. Niehaus
during the latter part of October 2024 and beginning of November 2024 at which time he
was advised that the plaintiffs’ matter indeed had strong prospects of success. It was,
however, noted that the plaintiffs were confronted with a serious challenge in respect of
condonation for the late referral of the matter. Mr. Niehaus advised that he would report
to Mr. Jim and revert.
[14] Mr. Niehaus apparently then reverted to Mr. Smit later during November 2024
advising that he had received the go- ahead from Mr. Jim to proceed with a referral and
advising that he had received the go- ahead from Mr. Jim to proceed with a referral and
a substantive application for condonation, but that it would be necessary for him to
consult in Atlantis to obtain more detailed instructions. Such consultation was eventually
only scheduled for 21 January 2025. The plaintiffs were advised that this was due to a
6
combination of work pressures towards the end of the year and a general problem with
NUMSA relevant to the payment of service providers on its legal panel.
[15] At the meeting of 21 January 2025, Mr. Niehaus advised the plaintiffs t hat the
drafting of papers was in fact in an advanced stage, but whilst he required further
detailed instructions from the plaintiffs , he is unfortunately confronted with serious
difficulties. Mr. Niehaus advised that on further reflection he realized that he was
confronted with a potential conflict of interest in that whilst he was acting for NUMSA he
could not ignore the fact that the plaintiffs as members potentially had a claim against
NUMSA for failing to refer the plaintiffs’ matter timeously. Mr. Niehaus also advised that
this was an issue he had to discuss with Mr. Jim which had also resulted in a delay in
consulting with the plaintiffs in Atlantis. Mr. Niehaus also shared with the plaintiffs that,
whilst attending to the initial drafting of papers, he was furthermore confronted with an
ethical dilemma both towards the plaintiffs and the court in that it is required in a
condonation application to take the court into full confidenc e. It was, however, apparent
that given the internal issues and sensitivity within NUMSA, he will either not obtain full
disclosure as to why the plaintiffs’ matter was not referred, or to the extent that this is
disclosed to him, he would not be at liberty to disclose all of this in the papers.
[16] As such, Mr. Niehaus advised that he could not in good conscience proceed with
a condonation application where NUMSA remains a party in circumstances where he
would be remiss in respect of his duties towards the court and ultimately this will only be
to the detriment of the plaintiffs, seeking condonation.
[17] Mr. Niehaus apparently discussed these issues with Mr. Jim, and it was decided
to advise the plaintiffs that NUMSA could no longer represent them and that they should
to advise the plaintiffs that NUMSA could no longer represent them and that they should
secure their own legal representative and that NUMSA would assist in respect of the
latter. As such Mr. Niehaus advised the plaintiffs that he made enquiries with colleagues
in Cape Town and he could assist in respect of recommendations as to a new
representative bearing in mind that the plaintiffs are in Atlantis and that they do not have
readily access to lawyers. Mr. Niehaus also advised that he was authorised to provide
7
any new representative with the draft papers for same to be settled without major
additional cost implications. The plaintiffs were accordingly referred to their present
attorney of record.
[18] These further processes resulted in a further delay in finalising the plaintiff’s
papers since 21 January 2025 and, in addition, when the plaintiffs were advised that the
defendant was in the process of filling permanent vacancies, the plaintiffs saw this as an
opportunity for settlement. The plaintiffs’ attorney of record was accordingly instructed to
first engage with the defendant relevant to such potential settlement by way of formal
correspondence. However, the defendant s ubsequently rejected the plain tiffs’ proposal
whereafter the plaintiffs were compelled to now proceed with this application.
[19] The deponent states that they are furthermore advised that suing NUMSA is
most likely a futile exercise in that it is virtually impossible for a civil court to step into the
position of the Labour Court and pronounce upon the merits of their unfair dismissal
claim, in the absence of any opposing papers and evidence from the defendant , and to
then conclude that had it not been for NUMSA’s negligence the plaintiffs would have
been reinstated or compensated. Accordingly, the plaintiffs’ only viable remedy is t o
approach the Labour Court with an application for condonation.
Prospects of success
[20] The plaintiffs submit that their dismissals were both procedurally and
substantively unfair. The fact that Mr. Smit was not aware of a communication and failed
to respond accordingly was no justification for prematurely terminating the consultation
process in circumstances where the parties had not yet fully ventilated and exhausted
all issues which are required to be consulted on in law and/or fairness.
[21] It is alleged that the defendant was in any event subsequently advised that the
non-reply was a bona fide miscommunication, yet the defendant r efused to retract the
non-reply was a bona fide miscommunication, yet the defendant r efused to retract the
dismissal letters and proceed ed with consultations. The defendant’s purported
8
economic rationale was emphatically exposed as a complete fabrication and far from a
genuine desire to outsource, the defendant embarked upon a process to reduce its
permanent workforce and to then rehire other (or in some cases the very same
employees) in the very same positions through a labour broker at substantially reduced
rates.
[22] The plaintiffs referred the court to the content of the statement of claim and were
therefore advised, should they be able to prove the averments and contentions
contained in the statement of claim during a trial, they would have established a
substantively unfair dismissal (and procedurally unfair dismissal), and as a
consequence that their prospects of success are exceptionally good.
Prejudice
[23] The plaintiffs s tate that should they be denied condonation, they will suffer
immeasurable prejudice. The economy in Atlantis is depressed and most of the plaintiffs
have been unable to find any gainful employment since their dismissals and there is
very little prospect of this changing in future. Suing NUMSA does not appear to be a
viable option. It is submitted that the defendant will suffer no prejudice should
condonation be granted. In this regard, the deponent refers to an existing AMCU
dispute that is cur rently before the Labour Court. Self -evidently, the defendant is still in
possession of all evidence and witnesses for purposes of defending the AMCU case. It
is also stated that should condonation be granted, it may well be feasible to bring an
application for the joinder of their matter and as such the defendant will be confronted
with a single trial dealing with all issues. The question of prejudice therefore
overwhelmingly favours the plaintiffs being granted condonation.
Public Interest
[24] The plaintiffs submit that the defendant is operating its business in the Atlantis
Special Economic Zone with the concomitant governmental incentives attached thereto.
9
As such, being a beneficiary of governmental incentives to inter alia create job
opportunities, it is unconscionable that the defendant had resorted to the plaintiffs’
retrenchments in a patently dishonest manner as to secure cheap labour by means of
an abuse of a temporary employment service. This goes beyond the parties and is of
interest to the public at large.
Legal requirements in relation to condonation
[25] It is necessary for this court to refer to relevant case law regarding applications
for condonation, especially given the degree of lateness in this matter. This case law will
then be considered, and applied, to the plaintiffs’ application for condonation and the
defendant’s opposition thereto.
[26] The relevant legal principles to be applied in an application for condonation are
well established. The court or relevant tribunal has a discretion, which must be
exercised judicially on a consideration of the facts of each case and in essence, it is a
matter of fairness to both sides.
1 In Melane v Santam Insurance Co Ltd 2 (Melane), it
was held that:
‘…. Among the facts usually relevant are the degree of lateness, the explanation
therefore, 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 there would be no point in granting
condonation… What is needed is an objective conspectus of all the facts.’
[27] The approach that, in the absence of a satisfactory explanation for a delay, the
applicant’s prospects of success are ordinarily irrelevant, has been conventionally
applied
3 and was confirmed in National Education Health and Allied Workers Union on
1 D Harms, ‘Civil Procedure in the Superior Court’, LexisNexis South Africa at B27.6
2 1962 (4) SA 531 (A) at 532C-F
3 See: NUM v Council for Mineral Technology [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC)
10
behalf of Mofokeng and others v Charlotte Theron Children’s Home 4 where the LAC
held that without a reasonable and acceptable explanation for a delay the prospects of
success are immaterial. In Colett v Commission for Conciliation, Mediation and
Arbitration and others
5, the LAC confirmed that without a reasonable and acceptable
explanation for the delay, the prospects of success are immaterial and without good
prospects of success, no matter how good the explanation for the delay, an application
for condonation should be refused.
[28] The onus is on the applicant seeking condonation to satisfy the court or tribunal
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 National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A
Division of Zimco Group) and others
6:
‘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 Constitutional Court
has, as a matter of fundamental principle, confirmed that all employment law
disputes must be expeditiously dealt with and any determination of the issue of
good cause must always be conducted against the backdrop of this fundamental
principle in employment law.’
[29] The fundamental requirement of expedition is not to be ignored. In Toyota SA
Motors (Pty) Ltd v CCMA and others
7, the Constitutional Court emphasised that one of
the fundamental purposes of the LRA was to establish a system for the quick
adjudication of labour disputes. When it assesses the reasonableness of a delay, the
court must not lose sight of this purpose.
4 [2004] ZALAC 9; (2004) 25 ILJ 2195 (LAC) at para 23.
5 [2014] ZALAC 1; [2014] 6 BLLR 523 (LAC)
6 [2014] ZALCJHB 115; (2015) 36 ILJ 232 (LC) at para 25.
7 [2015] ZACC 40; (2016) 37 ILJ 313 (CC).
11
[30] In Grootboom v National Prosecuting Authority and another 8 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 evidence and submissions
[31] This court must emphasise from the onset in evaluating the merits of the
application for condonation, and the opposition thereto, that the speedy resolution of
labour disputes is a key objective of our labour legislation. The court notes that speedy
dispute resolution of labour disputes is frustrated by huge backlogs in the Labour Court.
The delays caused by a backlog of cases are unfortunate. However, the backlog of
cases is no excuse for parties who fail to comply with statutory time frames in which to
refer disputes. There are no doubts that non- compliance with the prescribed time
frames by parties adds to the backlog of cases before the Labour Court and to further
delays due to applications for condonations having to be set down and determined
separate to the main disputes.
[32] In this matter before the court , the plaintiffs delivered their statement of claim
more than seven and a half months after expiry of the prescribed 90- day period. The
90-day period is legislated for a reason, which is to ensure the speedy and effective
resolution of labour disputes. In this context, the plaintiffs , although seven and a half
resolution of labour disputes. In this context, the plaintiffs , although seven and a half
months late after the expiry of the 90- day period, took more than ten and a half months
8 [2013] ZACC 37; (2014) 35 ILJ 121 (CC) at para 51.
12
to refer their dispute to the Labour Court. Such a delay must surely be frowned upon by
this court, as it defeats the purpose and objective of speedy and effective dispute
resolutions. As a direct result of this delay, this court is now required to first determine
the application for condonation, which will add an even further delay should condonation
be granted, before the matter is set down for trial.
[33] The plaintiffs are required to show good cause for the late referral. One of the
factors to be considered, which is the degree of lateness, is not favourable to the
plaintiffs in attempting to show good cause, and in showing that it is in the interest of
justice that condonation be granted.
[34] Applying the case law in relation to condonation, the plaintiffs who are seeking
the indulgence of this court for the late referral to be condoned, given the substantial
degree of lateness, must satisfy this court that there is a good explanation for such a
lengthy delay. The court has considered the reasons for the delay advanced on behalf
of the plaintiffs and finds that the founding affidavit contains unsubstantiated allegations
and/or inferences on crucial facts without establishing the facts relied on. Specific
details are required and where necessary, confirmatory affidavits must be obtained from
people relied upon to explain the delay. In this regard, no confirmatory affidavits have
been obtained from Mr. Niehaus, Mr. Jim, and the Interim Administrators.
[35] The court notes that the explanation for the delay is blamed on the political
infighting that took place within NUMSA since 2022, and which was still ongoing into
early 2025. That this may be the case cannot seriously be disputed. However, there is a
major problem for the plaintiffs in this regard, and this is the well -established principle of
there being a limit beyond which parties cannot rely on the tardiness or failures of their
there being a limit beyond which parties cannot rely on the tardiness or failures of their
chosen representatives, whether it being an attorney or a trade union in the context of
employment law.
[36] The onus to show good cause in the context of a condonation application rests
with the plaintiffs. Condonation is not there for the taking, and when a dispute is referred
13
late by some seven and a half months, a proper and full explanation is required for such
a lengthy delay. The plaintiffs were required to set out in detail the reasons for the
lateness, and place sufficient evidence before this court to convince this court that they
have done everything in their power and/or ability to follow up on the progress of their
dispute.
[37] The plaintiffs failed, in the founding affidavit, to set out what steps they took to
follow up on their dispute. They only referred to attempts made, without giving specific
details thereto, in the replying affidavit. The plaintiffs cannot make out a case for
condonation in the replying affidavit. They were required to do so in the founding
affidavit. There is nothing in the founding affidavit which points to the plaintiffs following
up and ensuring that their dispute was referred to the Labour Court. It is not sufficient
for the plaintiffs to state that they at all material times laboured under the incorrect but
bona fide belief that their matter was in fact referred to the court for adjudication and
that they were awaiting a trial date. There is no concrete evidence that they followed up
with NUMSA before January 2025 to confirm that their matter was indeed referred to the
Labour Court. The plaintiffs simply assumed that the matter was referred without
seeking confirmation thereof.
[38] In the replying affidavit, the deponent states, for the first time, that she personally
followed up with Mr. Smit on three occasions. No details are given as to the first two
times when she followed up on the matter. The third occasion relates to the meeting
called of 21 January 2025. As stated already, the plaintiffs cannot make out their case in
the replying affidavit and, in any event, the allegations of a follow up lacks specific
details as to the dates when there was a follow up. It is also important t o note that Mr.
Smit, in his confirmatory affidavit to the founding affidavit, makes no mention of the
Smit, in his confirmatory affidavit to the founding affidavit, makes no mention of the
plaintiffs or the deponent following up on the matter. Neither does Mr. Smit explain why
he failed to bring to the plaintiff’s attention that there was infighting within NUMSA,
which had an impact on the referral of their dispute to the Labour Court.
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[39] The explanation for the delay in referring the matter to the Labour Court from 17
June 2024 to October 2024 is therefore unacceptable and unreasonable and most
certainly not sufficient to explain a lengthy delay of some four months . All that was
required was for the plaintiffs to follow up with Mr. Smit and for Mr. Smit to advise the
plaintiffs that their matter is being prejudiced due to the NUMSA infighting. This was not
done. There is further no proof that the matter was referred to the Regional Legal
Officer other than the say -so of Mr. Smit. Neither is there any supporting evidence
obtained from the Regional Interim Administrators as to the role they allegedly played in
not ensuring the referral of the plaintiffs’ matter to the Labour Court.
[40] There is further no reasonable and acceptable explanation for the delay from
October 2024, when Mr. Smit allegedly spoke to Mr. Jim, until February 2025 when the
matter was eventually referred. At the time that Mr. Smit spoke to Mr. Jim, the General
Secretary, the referral was already four months late. Mr. Smit was then told to forward
all relevant documents to Mr. Niehaus, which he did during the latter part of October
2024 and beginning of November 2024. No reasonable explanation is provided why the
matter was not addressed urgently, and why documentation was sent to Mr. Niehaus
from the latter part of October 2024 and beginning of November 2024.
[41] Mr. Smit was then allegedly advised that the plaintiffs had strong prospects of
success, but that there was a serious challenge in respect of condonation for the late
referral. Neither Mr. Smit nor Mr. Niehaus showed any urgency to ensure that the
referral is done without any further delay given that the referral was now already late by
nearly five months. Another delay of two and a half months occurred despite Mr. Smit,
Mr. Niehaus and presumably Mr. Jim being aware that there was a serious challenge in
Mr. Niehaus and presumably Mr. Jim being aware that there was a serious challenge in
respect of condonation for the late referral. This is simply unacceptable. Although it may
be so that the plaintiffs cannot directly held responsible for this delay, except for their
failure to follow up on their matter and seeking confirmation that their matter was
referred, the plaintiffs were represented by their chosen trade union.
15
[42] In fact, Mr. Niehaus advised Mr. Smit later during November 2024 that he had
received the go- ahead from Mr. Jim to proceed with a referral and a substantive
application for condonation, but that it would be necessary for him to consult in Atlantis
to obtain more detailed instructions. Despite this, there is no acceptable explanation
why Mr. Niehaus, having received the go- ahead, failed to arrange for an urgent
consultation in November or December 2024. It is simply unacceptable to blame this
delay on a combination of work pressures towards the end of the year and a general
problem within NUMSA relevant to the payment of service providers. Nothing was
therefore done from the latter part of November 2024 until 21 January 2025 when the
meeting with the plaintiffs took place.
[43] Mr. Niehaus’ explanation to the plaintiffs that, although the drafting of papers was
in fact at an advanced stage but that he is unfortunately confronted with serious
difficulties, is unacceptable. Mr. Niehaus received the go- ahead from NUMSA in
November 2024 to pursue the matter and for him, at this late stage, to raise the
difficulties regarding NUMSA potentially being sued by the plaintiffs is extremely
unacceptable. NUMSA and Mr. Niehaus, and in fact Mr. Smit must accept full
responsibility for their fa ilures in this regard. It is completely unacceptable that a further
delay was now occasioned in the referral of the matter to the Labour Court because Mr.
Niehaus could not assist the plaintiffs any further.
[44] Mr. Niehaus, instead of accepting responsibility for NUMSA’s failure to timeously
refer the matter to the Labour Court, raised the so-called ethical dilemma to the plaintiffs
and the court for not being able to take the court into full confidence in fear of exposing
NUMSA to civil litigation. In this regard, NUMSA was responsible for the delay and
NUMSA was obligated to refer the matter and to explain to this court NUMSA’s failure.
NUMSA was obligated to refer the matter and to explain to this court NUMSA’s failure.
By simply walking away from this obligation, NUMSA neglected their responsib ility
towards the plaintiffs and increased the likelihood of being sued for their failures. In fact,
NUMSA as the representative trade union, was grossly negligent in ensuring that their
members’ rights to pursue their alleged unfair dismissals are exercised.
16
[45] And then, yet again from 21 January 2025, it took the plaintiffs’ new attorneys
another three weeks to deliver a statement of claim. No proof is provided of the
plaintiffs’ attempts to seek reinstatement to explain the further 3-week delay.
[46] The degree of lateness is severe, and the explanation for the delay is
unacceptable. It was already stated above that there is a limit beyond which a party can
no longer rely on the tardiness of their chosen representative. This principle is trite, as
will be demonstrated by referring to some case law in this regard.
[47] The following dictum in Saloojee and another, NNO v Minister of Community
Development
9 is particular apt of this kind of conduct by NUMSA where it was held as
follows:
“If, as here, the stage is reached where it must become obvious also to a layman
that there is a protracted delay, he cannot sit passively by, without so much as
directing any reminder or enquiry to his attorney and expect to be exonerated of
all blame; and if, as here, the explanation offered to this court is patently
insufficient, he cannot be heard to claim that insufficiency should be overlooked
merely because he has left the matter entirely in the hands of his attorney. If he
realises upon the aptitude or remissness of his own attorney, he should at least
explain that none of it is to be imputed to himself. That has not been done in this
case.”
[48] The court in Superb Meat Supplies CC v Maritz
10 held as follows:
“The case of appellant is firmly grounded in the delinquency of Majola and that is
manifest and self-evident… I also am of the judgement that the appellant through
the agency of its member Schreiber was negligent in not monitoring progress of
its case from the time of the service of the claim in August 1999 to the set down
for the trial on 12 March 2011, a period of nearly 18 months. The appellant
appointed new attorneys, and the file was available to them and would have
9 1965 (2) SA 135 (A)
10 (2004) 25 ILJ 96 (LAC)
17
indicated what contact took place between Majola and Schreiber during that
period. The court has not been informed of any communication, and it can be
inferred that the appellant took no active interest in its own litigation, a further
reason to conclude that it was negligent.
As I have indicated Trengrove AJA held in the De Wet case that disinterest and
failure to keep in touch with an attorney barred relief. Attorneys cannot be
blamed and the appellants – as in this matter – were the authors of their own
problems…”
[49] The court concluded:
“In this court and the Supreme Court of Appeal there have been frequently
repeated judicial warnings that there is a limit beyond which a litigant cannot
escape the results of his attorney’s lack of diligence or the insufficiency of the
explanation tendered. It has never been the law that invariably a litigant will be
excused if the blame lies with the attorney. To hold otherwise might have a
disastrous effect upon the observance of the rules of this court and set a
dangerous precedent. It would invite or encourage laxity on the part of
practitioners. The courts have emphasised that the attorney, after all, is the
representative whom the litigant has chosen for himself, and there is little reason
why, in regard to condonation of a failure to comply with a rule of court, the
litigant should be absolved from the normal consequences of such a relationship,
no matter what the circumstances of the failure are.”
[50] The above dictum is of direct application in the matter before this court and the
plaintiffs must stand or fall by the grossly negligent manner in NUMSA, their chosen
representative, handled their matter. The political infighting in NUMSA is no excuse for
non-compliance with prescribed time periods. The failure by Mr. Smit to advise the
plaintiffs of the infighting and to take appropriate and speedy steps to ensure the referral
of the dispute constitutes gross negligence. The failure by Mr. Niehaus, who rec eived
of the dispute constitutes gross negligence. The failure by Mr. Niehaus, who rec eived
the go-ahead from NUMSA to pursue the matter, amounts to a serious neglect of the
responsibility and obligations of NUMSA towards their members. The refusal by
18
Niehaus to take the court into his confidence rather than trying to protect NUMSA from
civil litigation is deplorable to say the least. The plaintiffs cannot, however, escape the
result of NUMSA’s gross negligence and the insufficiency of the explanation tendered.
[51] The court in Independent Municipal and Allied Trade Union on behalf of Zungu v
SA Local Government Bargaining Council and Others
11 held as follows:
“Trade unions exist for the very reason of looking after the interests of their
members. When employees join a trade union they entrust responsibility for
issues relating to their employment and the termination thereof to the trade
union. In the circumstances of this relationship I believe that there is an even
greater limit on the extent to which trade union members can escape the results
of their trade union’s lack of diligence. Trade unions have a vested interest in the
processing and outcome of disputes referred on behalf of their members. Their
very existence is about acting in the interests of their members. Members for
their part are happy to entrust their labour relations affairs to their union. This
case is a good example of where the trade union has been involved with the
dispute from the inception. It represented Mr. Zungu at the arbitration and as the
applicant in this matter has deposed to the affidavits in support thereof… In these
circumstances a member such as Mr. Zungu would have to put up good reasons
as to why he should be allowed to escape the consequences of the union’s lack
of diligence in launching the review application timeously. In this case there is no
explanation at all before this court from Mr. Zungu that would enable it to come to
his assistance. The condonation application must accordingly fail.”
[52] The following dictum in National Education Health and Allied Workers Union and
Others v Vanderbijlpark Society for the Aged
12 is directly relevant to this matter insofar
as NUMSA being a long standing and experienced union:
as NUMSA being a long standing and experienced union:
“The LRA has been in existence for more than 15 years, and the time- limits
governing referrals have not changed in that time. It is reasonable to expect that
11 (2010) 31 ILJ 1413 (LC) at para 25
12 (2011) 32 ILJ 1959 (LC) at para 9
19
trade unions ought to be well aware of the need to act timeously in the interests
of their members and to adapt their internal procedures to accommodate those
time-limits, not vice versa. The scale of an organisation cannot serve as a
justification for delays. On the contrary, it is reasonable to expect that larger
organisations, be they trade unions or businesses, ought to be able to see to it
that they are organised to deal with disputes of this nature in a systematic
manner to ensure that they do not fall foul of the time -limits in the LRA. Where
handling such disputes is a core function of the organization, this should go
without saying.”
[53] In this case the plaintiffs, being members of NUMSA, are even more bound to the
conduct of NUMSA as their chosen union. In Seatlolo and Others v Entertainment
Logistics Service (A Division of Gallo Africa Ltd
13 the court said:
“Indeed a trade union is not an independent legal representative acting as an
agent to the detriment of a client. It is a collective embodiment of its members
and is akin to a curator at litem in civil proceedings – in other words, it is ‘the
institutional embodiment of the several members involved in the dispute’… The
trade union is its members and this the applicants cannot escape the
consequences of their decision to be members of SACCAWU…”
[54] Given the aforesaid, this court is of the view that the plaintiffs’ prospects of
success are not a decisive consideration in this matter. Even if this court accepts that
the plaintiffs have established a prima facie case in respect of prospects of success, the
degree of lateness and the poor explanation for the delay outweighs such prospects of
success. It is unfortunate that the plaintiffs to some extent became victims of NUMSA ’s
infighting. However, their right to seek recourse does not lie with this court and against
the defendant. There is no reason why the defendant’s right to speedy and effective
the defendant. There is no reason why the defendant’s right to speedy and effective
resolution of disputes must be infringed by NUMSA’s infighting. The defendant surely
must have concluded, given the failure by the plaintiffs to refer their dispute within the
13 (2011) 32 ILJ 2206 (LC) at para 27
20
prescribed 90 days, that the plaintiffs and NUMSA no longer intended to pursue their
dispute.
[55] Insofar as the plaintiffs relied on the public interest, there is no merit in their
submission that this matter attracts public interest. The defendant does not receive any
grants from the government, nor any concessions for operating in Atlantis. This
therefore leaves the issue of prejudice. The court notes that the plaintiffs will be
prejudiced should condonation be refused. However, such prejudice is due to their own
failure to ensure that their matter has been referred, and due to NUMSA’s gross
negligence in protecting their interests. As stated already, the plaintiffs have the right to
pursue a claim for such negligence against NUMSA. The submission that pursuing such
a claim may be difficult to prove is not sufficient grounds for granting condonation.
Should condonation be granted, there may well be another delay of a year or longer
before the matter may be heard. It is not in the interest of justice to grant condonation
for the excessive delay in referring the matter to the Labour Court. It is also not in line
with the objective of speedy and effective resolution of labour disputes.
[56] Insofar as reference is made to the AMCU matter and to a joinder, the court
notes that the AMCU matter has now been concluded in this court. The reference to the
AMCU matter, therefore, does not assist the plaintiffs in respect of prejudice.
Costs
[57] In terms of the provisions of section 162(1) of the LRA, this court has wide
discretion when it comes to the issue of costs. The court is mindful of the dictum of the
Constitutional Court in Zungu v Premier of the Province of Kwa- Zulu Natal and Others
14
when it comes to the issue of costs in employment disputes. This court does not deem it
proper both in law and fairness to saddle the plaintiffs with an order as to costs.
[58] In the premises, the following order is made:
14 (2018) 39 ILJ 523 (CC).
21
Order
1. The application for condonation for the late filing of the statement of claim
is refused.
2. No order is made as to costs.
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Plaintiffs: A Heunis
Instructed by: JP Joubert Attorneys
For the Defendant: T Moyo from Snyman Attorneys