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[2025] ZALCJHB 429
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Association of Mineworkers and Construction Union v Commission for Conciliation Mediation Arbitration and Others (J1205/19) [2025] ZALCJHB 429 (19 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: J1205/19
In
the matter between:
THE
ASSOCIATION OF MINEWORKERS
AND
CONSTRUCTION
UNION
First
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION First
Respondent
JOHNNY
MATHEBULA
N.O. Second
Respondent
SIBANYE
STILLWATER
Third
Respondent
Heard:
18 June 2025
Delivered:
19 September 2025
JUDGMENT
LENNOX,
AJ
Introduction
[1]
This is an application in which AMCU seeks to review and set aside an
arbitration award issued by the Second Respondent
on behalf of three
of its members, who shall be collectively referred to herein as the
three members. It faces a hurdle in that
it also seeks condonation
for the late filing of the review application.
[2]
Both applications are opposed.
Condonation
[3]
To say that the delay in bringing the review application is excessive
is perhaps kind. The arbitration award was issued
by the Second
Respondent on 29 October 2021, and as such, the review application
was to have been filed by 30 November 2021. It
was only filed on 14
February 2023, which the Applicant accepts is 13 months and 21 days
late.
[4]
The explanation for the delay creates a further difficulty for the
Applicant in that vast periods of time are not accounted
for.
Briefly, it appears that:
4.1
the arbitration award was handed down on 19 October 2021;
4.2
on 29 October 2021, the individual members of the Applicant were
briefed on
the outcome of the arbitration proceedings and that they
asked that the matter be taken further;
4.3
on 11 November 2021, the regional official, Mr Hlatswayo, of the
Applicant wrote
to the Applicant’s legal office asking for an
opinion on the prospects of success;
4.4
the request for an opinion was forwarded to Mr Marais, the
Applicant’s
Head of Legal, on 12 November 2021;
4.5
on 18 November 2021, Mr Marais referred the matter to the Applicant’s
General Secretary of the Applicant for instructions;
4.6
the six-week period for filing the review application would have
expired on
30 November 2021;
4.7
on 6 December 2021, Mr Hlatswayo followed up with the legal office
and the report
was resent to the office of the General Secretary on 8
December 2021;
4.8
on 7 December 2021, 12 January 2022, 24 February 2022 and 23 March
2022, the
individual applicants followed up on whether the matter
would be taken on review;
4.9
on 11 April 2022, a Ms Khumalo, a paralegal employed by the
Applicant, wrote
to Mr Janse van Rensburg advising that no
instruction had been received about referring the matter to the
Applicant’s attorneys;
4.10
on or about 11 April 2022, Mr Janse van Rensburg sent the bundles to
the Applicant’s attorneys
seeking an opinion on the prospects
of success of a review application;
4.11
on 26 September 2022, Ms Khumalo followed up with Mr Janse van
Rensburg as to whether a legal
opinion had been obtained;
4.12
on 27 September 2022, Mr Janse van Rensburg emailed the Applicant’s
attorneys asking after
the status of the matter;
4.13
on 29 September 2022, the bundles were resent to the Applicant’s
attorneys;
4.14
in October and November 2022, opinions were provided to the Applicant
by its attorneys and by
counsel;
4.15
on 16 January 2023, the Applicant’s national leadership
authorised the launching of the
review application;
4.16
on 20 January 2023, the review application was filed.
[5]
The explanation put forward by AMCU is thus that it instituted a new
case management system, which resulted in the matter
falling through
the cracks. Once this was discovered, it appears that two opinions
were sought on the merits of the matter, both
from Counsel and his
instructing attorneys. Notwithstanding this, a further delay took
place as AMCU awaited a meeting of its national
leadership on 16
January 2023 before authorising the filing of the review application.
[6]
The periods involved are only dealt with in the broadest manner
possible, with periods, notably the time period between
the receipt
of the legal opinions in October and November 2023 and the
consideration of same by its national leadership on 16 January
2023
are unexplained.
[7]
Other vast periods of time are not explained by the Applicant,
notably 11 April 2022 to 26 September 2022, as well as
November 2022
to 16 January 2023. The only explanation for the first period is as
follows:
‘
However, Mr Janse
van Rensburg’s email was never received by Mr Dave (potentially
due to the size of the attachments) and
Mr Janse van Rensburg did not
receive any failed delivery report. Mr Janse van Rensburg did not
receive any failed delivery report.
Mr Janse van Rensburg had
therefore assumed that the email had been received by Mr Dave, that
Mr Dave had attended to the matter
and provided AMCU’s legal
department with the requested opinions on its prospects of success,
as is protocol.’
[8]
The Court could simply dismiss the condonation on this ground alone
without reference to the prospects of success left
unexplained. It is
not for AMCU and its leadership to sit on their laurels and ignore
the fact that a further delay in the institution
of the review
application was a direct result of its failure to consider the
opinions immediately upon their being provided. The
Court cannot
understand such conduct; it demonstrates a disregard for the Rules of
this Court, which is brazen and reckless.
[9]
It is
established law that an applicant must fully explain the reason for
the delay in order for a court to be able to assess whether
the
explanation tendered is a good one.
[1]
[10]
No explanation is provided as to what was done by the legal office to
follow up with the Applicant’s attorneys
or Mr Janse van
Rensburg in the interceding five months. The explanation that AMCU
had instituted new protocols deals only with
the situation from
November 2021 to April 2022.
[11]
The explanation is wholly lacking for these periods, and given the
fact that the review application was already out of
the time period
for launching same, AMCU and its officials ought to have paid more
attention to the matter.
[12]
In
Chetty
v Baker McKenzie
[2]
,
the following was held:
‘
[9] The
position as stated by this court in
NUM v Council for Mineral
Technology
still pertains, namely, that in considering
whether good cause has been shown in an application for condonation,
the approach
in
Melane v Santam Insurance Co Ltd
should
largely be adopted (i.e subject to an important qualification which
is dealt with i). In terms of that approach, the
court has a
discretion that has to be exercised judicially upon a consideration
of all the facts and that, basically, it is a matter
of fairness to
both sides. Amongst the relevant factors to be considered are the
degree of lateness, the explanation therefor,
the prospects of
success and the importance of the case. In terms of this approach, a
slight delay and a good explanation might
compensate for weak
prospects of success and the importance of the case and strong
prospects may compensate for a long delay.
[10] However, the
further principle applicable in conjunction with the broad approach
of
Melane
is that in the absence of a full and
reasonable (acceptable) explanation for the delay, the prospects of
success are immaterial,
and that if there are no prospects of success
an application for condonation should be refused even if there is a
good explanation
for the delay. It is important that the explanation
for the delay, considered objectively, must be “sufficiently
cogent to
warrant a consideration of the prospects of success.” There
are those explanations that do not meet the objective standard.
In
such cases the court would be justified in not considering the
prospects of success, because they are immaterial, unless issues
are
raised that would justify the Court’s interference. The
explanation for the delay must thus be full and reasonably clear,
logical and convincing to excuse the default.’ (Footnotes
omitted)
[13]
It is the view of the Court that it need not engage with the
prospects of success insofar as prospects of success are
concerned,
as the delay has not been properly explained.
[14]
The Court would have dismissed the condonation application on this
ground alone, but was encouraged by both parties to
examine the
prospects of success of the review application.
[15]
It must be observed that, given the lack of an explanation for the
delay, the Applicant would need to show exceptional
prospects of
success to be granted condonation. In argument before the Court, Mr
Cook, who appeared for the Applicant, implored
the Court to deal with
the merits of the review application and not simply dismiss the
application and in doing so make a determination
based on the merits
of that application. The consequence would be that in all cases where
litigants or their representatives (be
it a trade union, employer’s
organisation or legal practitioner) simply decline to act with the
necessary care, this must
be overlooked in the interests of allowing
a ventilation of the facts.
[16]
With respect to the submission, condonation is not there for the
taking, and for it to be granted, there must be excellent
prospects
of success.
[17]
Mr Fourie
SC referred the Court in his heads to
Gaoshubelwe
and Others v Piemans Pantry (Pty) Ltd
[3]
as authority for the proposition that a consideration of the
prospects of success merely implies a determination of the likelihood
or chance of success when the main case is heard and that for the
Court to be able to make such an assessment that it is necessary
to
set out briefly and succinctly such essential information that would
allow the Court to make such an assessment. It follows
that these
submissions must be set out in the founding affidavit to the
condonation application. This is acknowledged in the founding
affidavit deposed to by Mr Marais, who deposed thereto on behalf of
AMCU.
[18]
Mr Marais set out the grounds for review in detail in the founding
affidavit and, in doing so, has rescued AMCU from
the real
possibility of having the condonation application dismissed outright.
[19]
It seems from what Mr Marais has stated that the application is not
without merit, and therefore, as seriously as the
Court views the
conduct of AMCU in these proceedings, it shall accept the invitation
by both parties to consider the merits of
the review application.
Background
to the dismissals
[20]
A strike was underway, led by AMCU. The evidence suggests that it was
not peaceful. The strike, as all too frequently
happens, resulted in
violence. The Third Respondent obtained a court interdict prohibiting
acts of violence. The events of the
strike are merely the tapestry
upon which the facts of this matter were woven.
[21]
The violence surrounding the strike continued and
inter alia
resulted in the houses of two non-striking employees of the Third
Respondent being burnt on 15 December 2018. Such conduct is
reprehensible. The question before the Second Respondent is essence
was whether the three members were in any way involved in this
act of
wanton criminality?
[22]
The three members were charged as follows:
‘
Conduct in
contravention of a court order and/or off-duty misconduct in that you
engaged in and/or formed part of a group that acted
with common
purpose to intimidate and use violence and two respective properties
of fellow non-striking employees were burnt on
15
th
December 2018 at Blybank.’
[23]
The defences raised are briefly that the three were not in town and
were unable to have committed such acts.
[24]
At the disciplinary hearing, as well as by the Second Respondent in
the subsequent arbitration proceedings, the defences
were rejected.
[25]
At the heart of this application is the question as to whether the
Second Respondent came to a decision which, even if
wrong, was still
one that a reasonable decision maker could have arrived at.
The
eyewitness
[26]
The Third Respondent relied on the evidence of Mr Phasika Nsele, who
was in effect the landlord to the three. This ended
when he was
accused of being a ‘snitch’ and he and his family were
threatened by the three, who also threatened to
burn his RDP house.
[27]
He also stated that ‘Luzuko’ was not in Parys on 15
December 2018, as he had overheard him state at a braai
at his
property what he had done the previous evening.
[28]
He further stated that ‘Luzuko’ was carrying a dark
container on that evening as the three walked towards
the house,
which they burnt.
[29]
He also stated that he had seen Mr Ndhlala on 16 December 2018 when
he came from the fields and that Mr Likhuleni was
also present at the
braai held on 16 December 2018.
[30]
His evidence therefore suggests that all three were together at his
house on 16 December 2018 and that he had seen two
of them the
previous evening.
[31]
In cross-examination, he stated that he had seen Mr Ndhlala and Mr
Likhuleni burn houses in Blybank on 15 December 2018.
He also
disputed that Mr Manhciphu was in Parys as he could hide behind a
streetlight.
The
defences
[32]
Mr Ndlhala stated that he was travelling to Mpumalanga on 15 December
2018 and that he returned on 6 January 2019.
[33]
Mr Mangciphu stated that he left Blybank on 14 December 2018 for
Parys, where he would play in a soccer tournament, returning
on 16
December 2018. He claimed to have slept in the taxi. Mr Thobile
Ngquphaza stated that he was at the soccer tournament with
Mr
Mangciphu, who slept in a separate car from his.
[34]
Mr Likhuleni stated that he was in Bushbuckridge on 15 December 2018
and that he returned on 6 January 2019. Mr Doughlas
Maphosa testified
that he travelled with Mr Likhuleni to Bushbuckridge. It was put to
Mr Maphosa that the Third Respondent only
closed on 21 or 22 December
2018.
The
findings
[35]
The Second Respondent correctly identified that he was required to
weigh the evidence of the eyewitness and that of the
three members,
and that he would have to rely on credibility assessments and the
inherent probabilities attendant thereto.
[36]
The Second Respondent assessed whether there was a motive for the
three members to commit arson and whether Mr Nsele
had a reason to
fabricate evidence in order to incriminate them.
[37]
The Second Respondent held that it would not be unreasonable to infer
that the three members had committed arson as a
form of reprisal for
Mr Nsele snitching.
[38]
The Second Respondent also recorded that the arbitration award was
not made in ‘snippets’ but as a result
of a holistic
approach in evaluating the evidence.
[39]
To this point, the arbitration award is soundly reasoned in line with
what one would expect from an arbitrator. The following
statement
made by the Second Respondent is troubling:
‘
A lot of
activities allegedly committed by AMCU were not opposed. To that
extent I attached more weight on them and concluded that
the
applicants” (sic) conduct, as members of AMCU were more
probable.’
[4]
[40]
The Second Respondent accepted the version of Mr Nsele that he saw
the three members ‘
literally torching the house
’
and later discussing it over a braai on 16 December 2018. He
proceeded to find as follows:
‘
All other AMCU
members testified on the applicants’ behalf. I do not see an
AMCU member not testifying favourably for a fellow
member as
requested, lest he be called a rat.’
[5]
The
grounds of review
[41]
The grounds raised in the founding affidavit for condonation are that
the Second Respondent:
41.1
accepted the uncorroborated evidence of a single witness whose
credibility was challenged and
who came to a reasonable conclusion;
41.2
failed to attach any weight to the fact that the versions of the
individual applicants and their
witnesses corroborated each other;
41.3
failed to conduct a proper appraisal of key aspects of the evidence
by failing to consider or
ignoring relevant material facts and
evidence, and making findings on the probabilities that were not
supported by an overall conspectus
of the evidence;
41.4
failed to draw the most natural and plausible inference flowing from
a proper evaluation of all
the evidence and made findings on the
probabilities that were not supported by an overall conspectus of the
evidence; and
41.5
misinterpreted
and misapplied the law in respect of the reliance of
Emfuleni
Local Municipality v SALGBC and Others
[6]
.
[42]
The supplementary affidavit continues to raise further grounds of
review, all of which seem to suggest that the Second
Respondent did
not apply his mind to the evidence and arrived at unreasonable
findings.
[43]
The difficulty faced by AMCU is that a review is not determined on
whether a commissioner was correct in the findings.
It sets a far
higher test. The commissioner must have come to a conclusion that no
other commissioner could have arrived at.
[44]
Thus, could
the Second Respondent have reached the conclusion that he arrived at
based on the evidence? It is the view of the Court
that the Second
Respondent indeed considered the evidence and reached a conclusion
which is reasonable, even if not correct. As
was stated in
Mooki
v CCMA and Others
[7]
,
a commissioner is allowed to be wrong provided that the result is not
unreasonable.
[45]
Insofar as
the evidence of Mr Nsele is concerned, the Second Respondent accepted
his version over that of the three members of AMCU
and two additional
witnesses. The Second Respondent considered the evidence. He
proceeded to weigh up the probabilities and, in
the end, took the
view that the corroborating witnesses had reason to lie. This is a
decision he could arrive at. He preferred
one version over another.
The Second Respondent weighed up the evidence of Mr Nsele and
preferred that version. He carried out
the duties imposed on him.
[8]
[46]
Again, it must be emphasised that in doing so, the Second Respondent
may come to a wrong conclusion which would still
be unassailable for
as long as it is a conclusion which could be reached based on the
evidence before him.
[47]
The Second Respondent’s remarks in the award, which we most
stringently criticised by Mr Cook in argument, were
as follows:
‘
All other AMCU
members testified on the applicants’ behalf. I do not see an
AMCU member not testifying for a fellow member
as requested, lest he
be called a rat. Mangciphu, who appeared to be at the forefront, was
apparently in Parys. Thobile could not
commit himself about the time
of the course of action. Even if he did, by virtue of him being an
AMCU member who was on strike,
his evidence would have been looked at
with circumspect since he was appears (sic) to be assisting his
colleagues.’
[48]
Mr Cook pressed the argument that the Second Respondent had concluded
that he took the view that if you are a member
of a trade union, you
would lie to protect a member. The view of the Second Respondent must
be seen in the light of his evaluation
of the evidence and the
credibility of the witnesses.
[49]
The Second Respondent was faced with the direct evidence of Mr Nsele
and alibi witnesses who conveniently or fortuitously
provided
evidence that exonerated at least two of the three AMCU members by
placing them out of town.
[50]
In contrast, the Second Respondent had evidence suggesting that Mr
Nsele had reason to give false evidence.
[51]
The Court is of the view that the decision arrived at was one which
could have been arrived at, based on the evidence,
whether one agrees
with it or not.
Conclusion
[52]
As the condonation application must now fail for a lack of prospects
of success, the Court is of the view that whilst
an order of costs
may be warranted as a clear sign of the Court’s displeasure at
the manner in which AMCU dealt with the
review application, given the
ongoing relationship between the parties, same would not be in the
interests of the parties going
forward.
[53]
In the premises, the following order is made:
Order
1. The application
for condonation for the late filing of the review application is
dismissed.
2. There is no
order as to costs.
M.A.
Lennox
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr A Cook
Instructed
by:
LDA Inc
For
the Third Respondent:
Mr G Fourie SC
Instructed
by:
Solomon Holmes Attorneys
[1]
Independent
Municipal and Allied Trade Union on behalf of Zungu v SA Local
Government Bargaining Council
(2010) 31 ILJ 1413 (LC) at para 13.
[2]
(2022) 43 ILJ 1599 (LAC) at para 9.
[3]
(2009) 30 ILJ 347 (LC) at para 27.
[4]
Paragraph 86 of the arbitration award
[5]
Paragraph 89 of the arbitration award
[6]
(JR2525/11) [2015] ZALCJHB 356 (14 October 2015)
[7]
(JR772/15) [2017] ZALCJHB 173 (3 February 2017) at para 9.
[8]
See:
Northam
Platinum Mines v Shai N.O. and Others
(2012)
33 ILJ 942 (LC) and
S
v Carolus
[2008] ZASCA 14
;
2008 (2) SACR 207
(SCA)
.