THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: J215/21
In the matter between:
LUNGUZA LILIAN AND 33 OTHERS Applicants
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
BELINDA MAKGAKWE N.O. Second Respondent
MCCAIN FOODS SA (PTY) LTD Third Respondent
Heard: 20 May 2025
Delivered: 29 September 2025
Summary: Application for condonation for the late filing of review application.
No prospects of success, coupled with poor explanation for the
delay. Application dismissed.
JUDGMENT
2
DANIELS J
Introduction
[1] The applicant seek s condonation for the late filing of its review
application, brought to review and set aside a ruling of the second
respondent, a commissioner of the Commission for Conciliation,
Mediation and Arbitration (the “CCMA”). The third respondent opposes
the review application.
[2] Strangely, the applicant filed two different review applications under the
above case number. The first application was filed on 1 March 2021, and
the second on 27 May 2021. Both applications were filed late , but the
applicants have not sought condonation for the second application.
Accordingly, the second application is not properly before the court and
need not be considered. Accordingly, this judgment relates solely to the
first review application.
[3] The applicants submitted that the first application was withdrawn, but
there is no notice of withdrawal before the court, and no such notice was
served on the third respondent.
[4] Unfortunately, the applicant’s papers were far from comprehensive or
comprehensible.
Material facts
[5] The third respondent is in the business of manufacturing a wide range of
frozen food products at its plant in Springs. Its products include carrots,
peas, sweetcorn, and green beans. These vegetables are seasonal, and
each vegetable has their own season. The third respondent’s need for
labour is dictated by the time of the harvest and the crop yield, harvested
3
by suppliers as well as the third respondent’s own farms. The third
respondent employs workers for each crop, as well as general workers,
and it maintains a database of such workers. With each season,
depending on its needs, the third respondent engages workers from its
database for the applicable period in which labour is required.
[6] All the applicants were previously employed by the third respondent, and
they were all engaged on fixed term contracts. They were notified of the
termination of their contracts at different times. Many contracts were
terminated on 31 January 2020, but others were terminated much earlier.
[7] The applicants referred a dispute concerning their alleged unfair
dismissal, to conciliation, before the CCMA , on 24 August 2020. The
referral was late, and they applied for condonation. The third respondent
opposed the application for condonation. The second respondent (the
“commissioner”) issued her ruling on or about 1 October 2020 and
dismissed the application.
[8] It is apparent from the ruling that:
8.1 The periods of delay applicable to each of the applicants var ied
depending on the dates when they were informed of the termination
of their contracts. Some of the disputes were late by as much as two
years. The shortest period of delay was approximately five months.
The commissioner found that the periods of delay were excessive.
8.2 The applicants ’ explanation for the delay was that they had been
incorrectly advised to refer two other disputes and had only been
advised to refer a dispute about their dismissal when the Casual
Workers Advice Office (“CWAO”) became their representatives.
However, in its answering affidavit, the third respondent alleged that
the CWAO became the applicants’ representative during January
4
2020, but no dispute was referred then. The applicants filed no
replying affidavit. The commissioner found that the CWAO had been
representing the applicants since January 2020 and, accordingly, the
explanation for the delay was not compelling.
8.3 The applicants contended that they were required to report for duty
on 20 July 2020 but were not recalled. The third respondent denied
this and alleged that it was under no obligation to engage the
applicants every season. The applicants filed no reply ing affidavit
and put up no proof that they were required to report for duty on 20
July 2020. The commissioner accepted the third respondent’s
version noting there was no proof that the applicants were required to
report for duty on 20 July 2020. In addition, the commissioner found
that it was non sensical for the applicants to allege that they had all
been required to report for duty on 20 July 2020 when some of the
contracts had lapsed nearly two years earlier.
8.4 The applicants contended that the third respondent would suffer no
prejudice if condonation was granted. The third respondent denied
this and alleged that it would suffer prejudice because it would be
forced to defend a dispute that has no prospects of success. The
commissioner accepted that the third respondent would indeed suffer
prejudice.
[9] The applicants allege that the condonation ruling, though dated 1
October 2020, only came to their attention towards the end of November
2020. The review application was filed on 1 March 2021.
5
Late filing of review application
[10] The applicants contend that the review is approximately 93 days late.
The third respondent denies this and states that the condonation ruling
was sent to their representative, the CWAO, on 2 October 2020 and the
review application should therefore have been filed by 13 November
2020. The applicants filed no replying affidavit disputing that the
condonation ruling was sent to CWAO on 2 October 2020.
[11] The reasons for the delay, as articulated by the applicants, is simply
“…attributed to our ignorance as far as the labour laws dynamics are
concerned….”
[12] The applicants claim they have good prospects of success, as reflected
in their founding affidavit in the condonation application in the CCMA.
There, the prospects of success were explained as follows : “…workers
have shown their ability to seek for an assistance, workers should have
started working from the 24 July 2020 as sessional (sic) workers trying
the best to arrange the meeting with the company but without any luck to
receive feedback from the company.”
Legal principles
[13] The applicable principles were summarised in Grootboom v National
Prosecuting Authority & another
1 where Zondo J (as he then was) held:
“[50] In this court the test for determining whether condonation should
be granted or refused is the interests of justice. If it is in the interests of
justice that condonation be granted, it will be granted. If it is not in the
interests of justice to do so, it will not be granted. The factors that are
taken into account in that enquiry include:
1 (2014) 35 ILJ 121 (CC) at paras [50] and [51]
6
(a) the length of the delay;
(b) the explanation for, or cause for, the delay;
(c) the prospects of success for the party seeking condonation;
(d) the importance of the issue(s) that the matter raises;
(e) the prejudice to the other party or parties; and
(f) the effect of the delay on the administration of justice.
Although the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important factor in favour of
granting condonation.
[51] 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 . As a general proposition the various factors are not
individually decisive but should all be taken into account to arrive at a
conclusion as to what is in the interests of justice.”
(own emphasis)
[14] An important principle, emphasized in Grootboom , which echoes that in
Melane v Santam Insurance Co. Ltd
2 where Holmes JA held: “If there are
no prospects of success there would be no point in granting
condonation.” Where the delay is excessive, the explanation is so weak
as to amount to no explanation at all, and there is prejudice to the other
party, it may not be necessary to consider prospects of success.
3 When
dealing with an extensive delay, the explanation must be sufficiently full
2 1962 (4) SA 531 (A) at 532
2 1962 (4) SA 531 (A) at 532
3 Moila v Shai NO & others (2007) 28 ILJ 1028 (LAC) at para [34]
7
to enable the court to assess the motives of the applicant and the
reasonableness of the explanation. In addition, the explanation should
account for each period of the delay.
4
[15] In employment disputes, there is a further requirement – that of
expedition
5 given that one of the purposes of the LRA is to ensure the
expeditious resolution of employment law disputes.
[16] In Lekhesa: In re Ngwenya v Trustees for the time being of Sishen Iron
Ore Company Community Development Trust and another
6 the LAC
stated:
“The grant of condonation involves the exercise of a discretion, with a
decision to condone a party’s non compliance with the rules of the court
or directions constituting an indulgence granted by the court. Such an
application should be granted if, having regard to the particular
circumstances of the matter, it is in the interests of justice to do so, and
refused if it is not. To reach a decision, regard is to be had to factors
including the nature of the relief sought, the extent and cause of the
delay, the reasonableness of the explanation for the delay, the
importance of the issue to be raised, issues of prejudice and the
prospects of success. As a general proposition, the factors to be
considered are not individually decisive or an application for
condonation but are all considered to determine what is in the interests
of justice.”
(own emphasis)
4 NUMSA & another v Hillside Aluminium [2005] 6 BLLR 601 (LC) at para [12]
5 NUMSA on behalf of Thilivali v Fry’s Metals (Pty) Ltd (A Division of Zimco Group) and Others
(2015) 36 ILJ 232 (LC) at para [36]
6 [2024] 6 BLLR 585 (LAC); (2024) 45 ILJ 1220 (LAC) at para [14]
8
Standard of review of condonation rulings
[17] It is established that determination of a condonation application involves
the exercise of a so- called wide discretion or a discretion ‘loosely so
called.’7
[18] In appeals against the exercise of a judicial discretion, our courts will
interfere only where the discretion was not exercised judicially, the
decision was biased, the decision was influenced by wrong principles,
the decision was capricious or arbitrary, the decision was materially
influenced by a misdirection to such a degree to justify the conclusion
that the decisionmaker acted improperly or unreasonably.
8
[19] Reviews of condonation rulings cannot be assessed on a less stringent
standard applicable to appeals.
9 The court must therefore remain mindful
of the narrow scope for interfering with the exercise of a discretion based
on the multi factor test applicable to condonation applications.
Analysis of the condonation application
[20] As mentioned, the founding papers are far from comprehensive. The
delay is not minor or trivial. Despite this, as explained in paragraph 11
above, the explanation is so vague that, in my view, it amounts to no
explanation at all.
[21] The applicants are required to show that they have reasonable prospects
of success in reviewing the condonation ruling of the second respondent.
Instead, as reflected in paragraph 12, the applicants do not explain why
the ruling was not made judicially, was biased, was influenced by wrong
7 Nature’s Choice Products (Pty) Ltd v Food and Allied Workers Union and others (2014) 35 ILJ
1512 (LAC) at para [11]
8 Mabaso v Law Society, Northern Provinces and another 2005 (2) SA 117 (CC) at para 29
9 Bosch v Seynhaeve NO (159/2023); [2024] ZALCCT 25 (27 June 2024)
9
principles, capricious, or was materially influenced by a misdirection to
such a degree to justify the conclusion that the decisionmaker acted
improperly or unreasonably.
[22] On 8 March 2022, the applicants filed heads of argument in which they
attempt to flesh out the grounds of review and their prospects of success.
This is impermissible. The grounds of review must be pertinently set out
in the applicant’s founding and supplementary affidavits.
10 The grounds
of review may not be extended in the replying affidavit or in heads of
argument.
[23] In the final analysis, on the papers, the period of the delay is not minor,
the explanation is so vague as to be non- existent, and the prospects of
success are non- existent. There is no need to consider further factors ,
which are barely addressed by the applicants in any event.
[24] In the result, the applicants have failed to satisfy the court that it is in the
interests of justice to grant condonation for the late filing of the review
application.
Costs
[25] I see no reason to depart from the normal approach in this court that
costs do not follow the result. The twin requirements of law and fairness
do not demand that the applicants be mulcted in costs.
Conclusion
[26] The application for condonation for the late filing of the review
application, filed with this court on or about 1 March 2021, is dismissed.
10 Communication Workers Union and others v SA Post Office Ltd and others (2013) 34 ILJ 626
(LC) at paras 35 and 39
10
There is no order as to costs.
RN Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant
Union official
For the Third Respondent
Mr L Fraam-Arp
Fasken Attorneys