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[2025] ZALCCT 85
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Munsami v British American Tabacco SA (Pty) Ltd (C544/2022) [2025] ZALCCT 85 (22 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no: C544/2022
Not
reportable
In
the matter
between:
RADASNI
MUNSAMI
Plaintiff
and
BRITISH
AMERICAN TABACCO SA (PTY) LTD
Defendant
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:
(Condonation for late delivery of
Statement of Response – delay not excessive – reasonable
explanation provided –
prima facie prospects of success in main
action – condonation granted).
JUDGMENT
LESLIE
AJ
[1]
This is an opposed application in which the defendant seeks
condonation for the late delivery of its Statement of Response
in the
main action under the above case number.
[2]
The
decision whether to grant condonation or not involves the exercise of
a discretion having regard to all relevant factors, ultimately
aimed
at identifying which outcome would best serve the interests of
justice. 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.
[1]
The
degree of lateness
[3]
The plaintiff’s Statement of Case was delivered on 8 December
2022. Primarily due to the festive season, the
defendant’s
attorneys requested an indulgence to deliver the Statement of
Response by 16 January 2023. This was granted.
A second
indulgence was sought and granted until 23 January 2023.
[4]
On 25 January 2023, the defendant’s attorneys requested a
further indulgence to deliver the Statement of Response
by 13
February 2023. This request was refused by the plaintiff.
[5]
The Statement of Response was ultimately served on the plaintiff on
17 February 2023. This was 19 court days after 23
January 2023 (the
date of the extended indulgence).
[6]
It is common cause that the delay is not excessive.
The
explanation for the delay
[7]
The explanation advanced by the defendant for the delay is that, in
light of some of the averments made in the Statement
of Case –
specifically pertaining to a tender process in Zambia - it was
necessary to obtain instructions from certain people
situated in
Zambia and the United Kingdom.
[8]
The defendant’s attorney states that consultations took place
on 23 and 25 January 2023, after which the third indulgence
from the
plaintiff was sought (and refused). The draft Statement of
Response contained various comments and further information
that was
required. It had to be checked by employees situated in Zambia
and the United Kingdom before it could be filed.
It was
finalised on 17 February 2023 and served on the plaintiff on that
day.
[9]
In her answering affidavit, the plaintiff essentially denies that it
was necessary to consult with employees outside South
Africa.
She asserts that the defendant ought to have been fully aware of the
Zambian tender fraud issue, since a full investigation
had been done
and “
some of the South African directors were also
involved.”
[10]
It may well be the case that employees in South Africa were privy to
some of the information pertaining to the tender
fraud allegations
made in the Statement of Case. Ultimately, however, the
plaintiff does not have personal knowledge of the
persons with whom
the defendant’s attorneys deemed it necessary to consult in
drafting the Statement of Response. The
averments made in the
answering papers are not sufficient to give rise to a genuine dispute
of fact in motion proceedings. There
is no proper basis on which to
reject the defendant’s version on affidavit. In my view, the
defendant’s attorneys cannot
be faulted for seeking
instructions from persons with direct knowledge of the events in
question.
[11]
In short, the defendant has put up an acceptable explanation for the
delay.
The
defendant’s prospects of success
[12]
It is trite
that, in assessing a litigant’s prospects of success,
discursiveness is to be discouraged.
[2]
Having regard to the pleadings:
12.1
It is common cause that the plaintiff was dismissed pursuant to a
retrenchment process conducted
under section 189A of the Labour
Relations Act 66 of 1995 (“the LRA”). Part of the
plaintiff’s claim is
that her dismissal was procedurally
unfair, on a number of grounds. Section 189A(18) provides that
the Labour Court may not
adjudicate a dispute about the procedural
fairness of a dismissal based on the employer’s operational
requirements in any
dispute referred to it in terms of section
191(5)(b)(ii).
Prima facie
it appears that the defendant
has reasonable grounds for defending the plaintiff’s claim of
procedural unfairness.
12.2
Moreover, the defendant has pleaded that the plaintiff’s
retrenchment was based on its
genuine operational requirements and
that alternatives were considered, to no avail. I refrain from
expressing any firm view
on these points at this stage. Suffice
it to say that the defendant has at least laid out a
prima facie
defence to the plaintiff’s claim of substantive unfairness, in
the sense that, if established at trial after all the evidence
has
been led, its defence would succeed.
[13]
Overall, the defendant has shown that it would have some reasonable
prospects of success in defending the main action
if it were to
proceed to trial.
The
importance of the case, prejudice and the interests of justice
[14]
In
Bosch
v Seynhaeve NO
[3]
this court, per Lagrange J, held (after reviewing several of the more
recent authorities of the LAC and the Constitutional Court
regarding
condonation) that:
“…
questions
of prejudice and the effect on the administration of justice are also
factors that should also be considered. The
nature of the
relief sought is also a factor bearing consideration. For example, in
an application for condonation for the late
filing of a petition for
leave to appeal to the Labour Appeal Court against a labour court
judgement reviewing an arbitration award
might warrant much greater
attention being paid to the prospects of success, given that the
underlying dispute has already been
considered by two independent
adjudicators, albeit in different types of proceedings. By contrast,
an application for condonation
for a late referral of an unfair
dismissal dispute to a bargaining council concerns a dispute which
has never been canvassed in
any form by a completely independent
adjudicator and accordingly the aggrieved party has not yet had the
opportunity to exercise
that right. It must also be borne in mind
that the referral is the gateway for an employee to exercise their
constitutional right
to fair labour practices as provided for by the
Labour Relations Act, 66 of 1995 (‘the LRA’) in an
independent forum
of first instance. Closing that avenue means the
employee is deprived of any hearing of their unfair dismissal claim.
[15]
In the present matter, if condonation is refused the prejudice to the
defendant is severe. It would be deprived
of presenting its
defence to the unfair dismissal claim in the Labour Court – the
court of first instance. On the other
hand, there is no
comparable prejudice to the plaintiff as a result of the 19-day delay
for which condonation is sought.
[16]
Overall, on a conspectus of the relevant factors in my view it would
be serve the interests of justice to grant condonation
for the late
delivery of the Statement of Response.
[17]
The plaintiff, quite correctly in my view, did not press for a costs
order.
[18]
In the premises, the following order is made:
Order
[1] The late
delivery of the defendant’s Statement of Response is condoned.
[2] There is no
order as to costs.
Leslie
AJ
Acting
Judge of the Labour Court of South Africa
Representatives
–
For
the defendant: L Moosa, Cliffe Dekker Hofmeyr Inc
For
the plaintiff: In person
[1]
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).
[2]
Melane
(supra)
at 532C-G.
[3]
(159/2023) [2024] ZALCCT 25 (27 June 2024) para 16.