THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 274/2024
In the matter between:
BIFAWU obo MORDECAI TSOTETSI Applicant
and
OLD MUTUAL INSURE (previously known as Mutual
Federal Insurance Company Ltd) Respondent
Heard: 29 August 2025
Delivered: 29 September 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________
BALOYI AJ
Introduction
[1] The defendant raised an exception to the plaintiff's statement of case on
account of no cause of action being disclosed, coupled with jurisdictional
issues, namely, absence of referral to conciliation, absence of condonation for
2
the late referral of the dispute to this Court, and res judicata. The exception is
opposed and is accompanied by an application for condonation for its late
filing, which is also opposed.
Background
[2] The long history of this matter dates back to the plaintiff’s dismissal on 11
September 2018. What is relevant to this exception is the statement of case
filed on 13 May 2024, based on the certificate of outcome issued on 27 May
2022. In terms of the certificate of outcome, a recommendation is made that
the matter be referred to arbitration after an unsuccessful attempt to resolve
the dispute through conciliation. The matter was ultimately scheduled for
arbitration, and the CCMA issued a jurisdictional ruling on 28 November 2023.
In terms of the ruling, the Commissioner made a finding that the CCMA does
not have jurisdiction, but this Court does.
[3] Consequent to the ruling, the plaintiff referred the dispute to this Court by
means of the statement of case, which is the subject matter of the exception
before this Court.
The arguments
[4] In the forefront of the defendant’s argument are the jurisdictional factors of
failure to refer the dispute to conciliation, together with failure to apply for
condonation for having referred the dispute six years after the plaintiff’s
dismissal. The plaintiff had quickly dealt with the failure to refer to conciliation
by referring to the certificate of outcome issued on 27 May 2022. The plaintiff
further disputed the defendant’s assertion that the matter was referred to this
Court out of time . The plaintiff’s contention is based on the counting of 90
days from 14 February 2024, which is the date he became aware of the ruling
of 28 November 2023. Having filed the statement of case on 13 May 2024, it
is according to the plaintiff within the 90 days.
[5] The plaintiff persisted with this argument until his representative, Mr Nhlapho,
after lengthy engagement with the Court , made a submission that he would
after lengthy engagement with the Court , made a submission that he would
need time to apply for condonation. He still persisted with the incorrect
3
reasoning for the explanation for the delay for the intended condonation
application, that the applicant was reliant on the ruling, not the certificate of
outcome, when calculating the 90 days. He did not dispute that the defendant
had, prior to the date of the hearing, brought this to the plaintiff’s attention.
Evaluation
[6] It goes without any doubt that jurisdiction is the prerequisite for the Court to
exercise its powers on any particular matter it is called upon to decide. It is
permissible for the Court to uphold an exception on jurisdictional factors ex
facie the particulars of claim.
[7] The jurisdictional issue in this matter made its way to this Court as part of the
exception. It does not arise from the reading of the plaintiff’s statement of
case. The defendant raised the point based on two issues : firstly, that there
was no referral to conciliation at all. Secondly, if the plaintiff was seeking to
rely on the certificate of outcome issued in the matter that this Court at some
point struck out , the plaintiff had, as such, filed the statement six years late
and did not apply for condonation. It was only through the plaintiff’s opposition
to the defendant’s application for condonation of the late filing of the exception
that this specific dispute was referred to conciliation . The certificate of
outcome was issued on 27 May 2023, and a ruling pronouncing the CCMA
lacking jurisdiction was made on 28 November 2023.
[8] In the defendant’s arguments, the jurisdictional issue appeared to have
evolved and reflected on the lateness of the filing of the statement , being
calculable from the expiry of 90 days after 27 May 2025. This indeed came to
the attention of the plaintiff and this Court for the first time on the date of the
hearing, as conveyed through heads of argument that were handed up at the
commencement of arguments. This point is correctly raised. A party whose
prosecution of the case or defence is out of time has a duty to file a
prosecution of the case or defence is out of time has a duty to file a
condonation application as soon as it becomes aware of lateness. With the
plaintiff becoming aware of the need to apply for condonation on the date of
the hearing, coupled with the absence of evidence that the plaintiff was
previously alerted to specific non- compliance, it will not be in the interest of
4
justice to deny the plaintiff an opportunity to apply for condonation of this late
filing.
[9] The Court is therefore enjoined to determine the merit of the exception of
statement of case of the matter that is properly before the Court . The
determination of the merit of the exception should, under the circumstances,
be deferred pending the determination of the condonation application.
[10] In the premises, the following order is therefore made:
Order
1. Condonation application for the late filing of the exception is granted insofar
as it may be necessary.
2. The determination of the exception is deferred pending the determination of
the application for condonation of the late filing of the statement of case.
3. The plaintiff is directed to file the application for condonation of the late
filing of the statement of case within 10 days of receipt of this order.
4. There is no order as to costs.
___________________
MM Baloyi
Acting Judge of the Labour Court of South Africa
5
Appearances:
For the Applicant: Mr Nhlapho
Union Official
For the Respondent: Mr JJ Van der Walt
Of Cliffe Dekker Hofmeyr attorneys