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[2025] ZALCCT 83
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Limitless (Pty) Ltd v Commission for Conciliation Mediation Arbitration and Others (C328/2024) [2025] ZALCCT 83 (22 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no: C328/2024
Not
reportable
In
the matter
between:
LIMITLESS
(PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
GUYBLOCH
N.O.
ICHAWU
obo T VAN GRAAN
Second
Respondent
Third
Respondent
Date
of Hearing:
10 September 2025
Date
of Judgment:
22 September 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 22 September
2025.
Summary:
(Application for condonation for late delivery of an application
to review a default arbitration award and a rescission ruling –
substantial delay – poor explanation – weak prospects of
success – condonation refused with costs).
JUDGMENT
LESLIE
AJ
[1]
In the main application under the above case number, the applicant
seeks to review and set aside a default arbitration
award (“the
award”) issued by the second respondent (“the
commissioner”) under the auspices of the first
respondent (“the
CCMA”) as well as the commissioner’s subsequent ruling
declining to rescind the award (“the
rescission ruling”).
[2]
The
application was filed significantly out of time and the applicant
accordingly seeks condonation.
[1]
[3]
Both the condonation application and the main application are opposed
by the third respondent.
Condonation
[4]
The
decision to grant condonation involves the exercise of a discretion
having regard to all relevant factors. It typically requires
the
court to weigh up a number of factors, including the degree of
lateness, the explanation for the delay, the applicant’s
prospects of success in the main application and the importance of
the case.
[2]
The
extent of the delay
[5]
The award came to the attention of the applicant on 28 July 2023. The
review application was delivered on or about 30
July 2023 – one
year later.
[6]
The rescission ruling was issued on 1 September 2023. The review
application was launched 41 weeks after this.
[7]
I accept that it was reasonable for the applicant to await the
outcome of the rescission ruling before applying to review
the award
(since if the rescission had been granted there would have been no
need to review the award). At the very latest it was
reasonable to
expect the applicant to have brought the review application within
six weeks of 1 September 2024, that is by 4 November
2023.
[8]
On this view, the degree of lateness is about 9 months (4 November
2022 to 30 July 2024). This is an excessive delay,
particularly in
the context of the six-week period within which reviews under section
145 of the Labour Relations Act 66 of 1995
(“the LRA”)
must be brought.
The
explanation for the delay
[9]
On 1 September 2023, the applicant received the rescission ruling
from the CCMA. Rescission was refused.
[10]
The deponent to the founding affidavit, Mr Ryno Marais –
director of the applicant, states that upon receipt of
the rescission
ruling he took advice from an unnamed HR consultant.
[11]
According to Mr Marais the advice from the HR consultant was that:
“…
the
matter will go to the Labour Court. Applicant understood that advice
to be that the 3
rd
Respondent will go to the
Labour court to enforce the award, and we will have the opportunity
to contest same by providing the
evidence that we had.”
[12]
It beggars belief that an HR consultant worth his or her salt could
have furnished such advice. The rescission application
having been
refused, the award remained final and binding on the parties. It was
now executable in the hands of the third respondent.
If the HR
consultant indeed advised the applicant as alleged, it was grossly
negligent. Since this bad advice is the crux of the
applicant’s
explanation for the delay, I would have expected the applicant to
procure an explanation from the HR consultant
explaining him/herself.
There is none.
[13]
In effect, the applicant did nothing and adopted a wait-and-see
approach.
[14]
In
February 2024, the third respondent’s attorneys served papers
on the applicant pursuant to having the award certified as
executable
in terms of section 143 of the LRA. This ought to have jolted the
applicant into action. Again, however, the applicant
did nothing to
challenge the award or the rescission application.
[3]
[15]
It appears that it was only after the sheriff attended at the
applicant’s premises to execute the award, in June
or July
2024, that the applicant finally decided to act. The review
application was ultimately launched on 30 July 2024.
[16]
In view of the length of the delay, a comprehensive and cogent
explanation was required, enabling the court to fully
understand how
the delay came about. The explanation proffered falls well short of
what was required.
[17]
In essence, the applicant is seeking to lay the blame for the delay
on bad advice received from its HR consultant –
who has not
placed any affidavit before the court.
[18]
In
any event, it is trite that there is a limit beyond which a litigant
cannot escape the results of his representative’s
lack of
diligence.
[4]
In my view this
limit has been breached in the present case.
Prospects
of success
[19]
As far as the award is concerned, the applicant faces an uphill
battle in succeeding in a review.
[20]
The
Sidumo
test
[5]
is whether a reasonable person, in the position of the commissioner,
could have concluded on the material properly before him,
that Mr Van
Graan’s dismissal was unfair.
[21]
The commissioner only had one version before him, that of Mr Van
Graan. Mr Van Graan testified before the commissioner
that on 22
January 2022, while at work, he received a call from his brother to
inform him that a dog had just bitten his child.
Mr Van Graan
immediately went to his child in the applicant’s vehicle. Mr
Marais and his wife arrived on the scene some 10
minutes later and
dismissed Mr Van Graan on the spot, because he had left his work
site.
[22]
A review court would be bound to consider the reasonableness of the
commissioner’s finding (that the dismissal
was procedurally and
substantively unfair) with reference to the material that was before
the commissioner when he made his decision.
Since the commissioner
only had Mr Graan’s version to consider, the applicant’s
prospects of reviewing the award are
exceedingly slim.
[23]
As regards the applicant’s prospects of reviewing the
rescission ruling, the commissioner recorded the following
in the
award:
“
I am satisfied
that the respondent received proper notice in terms of the CCMA rules
in that the notification of proceedings was
sent via SMS to two cell
phone numbers, on 29 May 2023, and a reminder sent to the same two
cell phone numbers on 9 July 2023.
I noted that from the case file,
that there was conciliation for this matter on 24 February 2023,
where the respondent attended,
and wrote their names and contact
details. The SMS’s were sent to the same numbers as on the
7.11, 7.13, and on the attendance
register for the 24 February 2023,
where the respondent owner and his wife (according to the applicant
who was also present at
conciliation), wrote their names and
details.”
[24]
In short, the commissioner recorded that he satisfied that the
applicant had been properly notified of the arbitration
by SMS.
[25]
Rule 5A of the CCMA rules provides that notification of an
arbitration hearing may be provided to parties by means of
short
message service.
[26]
The applicant was therefore alerted, at the time of applying for
rescission, that the commissioner had satisfied himself
that
notification of the hearing had been sent to Mr Marais and his wife
on two occasions by SMS – using two cell phone numbers
that had
been provided by Mr Marais and his wife.
[27]
The
rescission application makes no attempt to deal with the facts
surrounding the SMS notification.
[6]
The only reason for non-attendance advanced by the applicant was that
an incorrect email address was used by the CCMA. With respect,
that
missed the germane point. It says nothing about whether SMS
notification of the hearing was received.
[28]
On this ground, in refusing the rescission application the
commissioner reasoned, quite correctly, that the applicant
had
altogether failed to address the question of SMS notice. He held
that:
“
I am still
satisfied that the respondent was most likely aware of the
arbitration proceedings. I find it unlikely that either one
of the
respondent cellphone numbers used for the SMS notifications would not
have been seen by the respondent, especially with
a reminder also
being later sent to them too.”
[29]
This point appears to be not only correct, but unanswerable.
Accordingly, it is my view that the applicant does not enjoy
reasonable prospects in reviewing the rescission ruling.
Importance
of the case
[30]
Aside from its inherent importance to the parties, there is nothing
particularly important about this matter from a public
policy
perspective. The main case involves a single dismissal on grounds of
misconduct.
[31]
Overall, in my view the interests of justice will not be better
served by granting condonation. There is a substantial
delay which
has not been adequately explained. The applicant has weak prospects
of success in both review applications. There are
no other overriding
factors that warrant the exercise of this court’s discretion in
favour of the applicant.
[32]
As regards costs, it appears that the applicant (whether on the basis
of bad advice from its HR consultant or not) was
content to sit on
its hands and wait for the third respondent to expend resources in
enforcing the award. It was only when the
sheriff attended at the
applicant’s premises that it was finally spurred into taking
any action. I agree with Mr Brown, for
the third respondent, that the
court should take a dim view of this conduct. In view of this
conduct, coupled with the poor prospects
of success, I am inclined to
order costs against the applicant.
[33]
In the premises, the following order is made:
Order
[1] Condonation for
the late delivery of the review application is refused.
[2] The applicant
is ordered to pay the third respondent’s costs of this
application.
Leslie
AJ
Acting
Judge of the Labour Court of South Africa
Representatives
–
For
the applicant: R Potgieter, instructed by Len Dekker
Attorneys
For
the third respondent: R Brown, Herold Gie Attorneys
[1]
Although the third respondent’s answering affidavit was filed
late, the applicant did not file an objection as contemplated
in
Rule 36. It was therefore unnecessary for the third respondent to
have sought condonation.
[2]
The principles set out in
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531
(A) have been endorsed and developed over many years,
including by the Constitutional Court in
Grootboom
v National Prosecuting Authority
2014
(2) SA 68 (CC).
[3]
Mr Marais states in his founding affidavit that he did not
understand nature or purpose of the documentation. This is highly
doubtful – it is unequivocally aimed at enforcing the award.
One can only assume that Mr Marais did not pay sufficient
attention
to the documents.
[4]
Saloojee
v Minister of Community Development
1965
(2) SA 135 (A).
[5]
Sidumo
v Rustenberg Platinum Mines Ltd
[2007] 12 BLLR 1097 (CC).
[6]
There is not even a denial that Mr Marais or his wife received the
SMS notifications on the dates mentioned by the commissioner
in the
award.