IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J1033/24
In the matter between:
EASYBRANCH (PTY) LTD Appellant
and
SIBIYA, Z N.O. First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
MOLEKOA, JOSEPH Third Respondent
Heard: 30 July 2025
Delivered: 6 October 2025
JUDGMENT
SASS AJ
Introduction
[1] This is an appeal in terms of section 10(8) of the Employment Equity Act
No. 55 of 1998 (the EEA) against the A rbitration Award made by the
Second Respondent under the auspices of the First Respondent that the
Third Respondent was subjected to unfair discrimination on the grounds of
sexual harassment (the Appeal).
[2] The Appellant noted its appeal on or about 13 November 2024. In terms of
Rule 66 of the Rules of this Court and having regard to the date on which
the Arbitration Award was handed down and provided to the parties, the
Appeal should have been noted on or before 30 October 2024.
[3] The Appeal was therefore noted (i.e., filed) approximately 13 (thirteen)
days late and the Appellant requires condonation in respect of the late filing
of the Appeal. On or about 10 December 2024, the Appellant applied for
condonation in respect of the late filing of its Notice of Appeal (the
Condonation Application).
[4] The Third Respondent was present in court when the matter was called on
30 July 2025. He indicated that he intended to oppose the Appeal and
requested a postponement of the Appeal in order to obtain legal
representation.
[5] In light of the above, this Court i s required to consider the following three
issues:
(1) firstly, the Appellant’s Condonation Application;
(2) secondly, the Third Respondent’s request for the postponement of
the Appeal; and
(3) thirdly, if condonation is granted ex tempore and the request for a
postponement is unsuccessful, the merits of the Appeal.
[6] I address each of these issues below in turn. I deal with the Condonation
Application first, as in the absence of condonation being granted, this Court
lacks the necessary jurisdiction to consider the Appeal.
The Condonation Application
Applicable legal principles
[7] The applicable legal principles are trite and the approach to be adopted by
this Court is well settled. It is not necessary to burden this judgment with a
repetition of the applicable law and authorities save to refer to the
Constitutional Court decision in Steenkamp and Others v Edcon Limited 1
in which the Constitutional Court re- affirmed that granting condonation must
be in the interests of justice and in which it referred with approval to its
decision in Grootboom v National Prosecuting Authority2:
[36] Granting condonation must be in the interests of justice. This
Court in Grootboom set out the factors that must be considered
in determining whether or not it is in the interests of justice to
grant condonation:
“[T]he standard for considering an application for condonation is
the interests of justice. However, the concept ‘interests of
justice’ is so elastic that it is not capable of precise definition. As
the two cases demonstrate, it includes: the nature of the relief
sought; the extent and cause of the delay; the effect of the delay
on the administration of justice and other litigants; the
reasonableness of the explanation for the delay; the importance
of the issue to be raised in the intended appeal; and the
prospects of success. It is crucial to reiterate that both Brummer
and Van Wyk emphasise that the ultimate determination of what
is in the interests of justice must reflect due regard to all the
relevant factors, but it is not necessarily limited to those
mentioned above. The particular circumstances of each case
will determine which of these factors are relevant.
It is now trite that condonation cannot be had for the mere
asking. A party seeking condonation must make out a case
entitling it to the court’s indulgence. It must show sufficient
cause. This requires a party to give a full explanation for the
non-compliance with the rules or court’s directions. Of great
significance, the explanation must be reasonable enough to
significance, the explanation must be reasonable enough to
excuse the default.
1 [2019] 11 BLLR 1189 (CC), specifically the Constitutional Court’s second judgment.
2 2014 (1) BCLR 65 (CC) at para 20.
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.”
3
[37] All factors should therefore be taken into account when
assessing whether it is in the interests of justice to grant or
refuse condonation.”
[8] The Constitutional Court had also already in Brummer v Gorfil Brothers
Investments (Pty) Ltd 4 pointed out that an application for condonation
should be granted if it is in the interests of justice and refused if it is not.
The interests of justice must be determined by reference to all relevant
factors outlined in Melane v Santam Insurance Co Ltd 5, including the
nature of the relief sought, the nature and cause of any other defect in
respect of which condonation is sought, and the effect of the delay on the
administration of justice6.
3 Ibid at paras 22-3 and 51.
4 2000 (2) SA 837 (CC).
5 1962 (4) SA 531 (A)
6 Id fn 4 at para 3; See also Ndlovu v S 2017 (10) BCLR 1286 (CC) at paras 22 – 23; Van Wyk v
Unitas Hospital (Open Democratic Advice Centre as amicus curiae) 2008 (2) SA 472 (CC) at 477A-
B; SA Post Office Ltd v CCMA [2012] 1 BLLR 30 (LAC) at para [23], where Waglay DJP (as he was
B; SA Post Office Ltd v CCMA [2012] 1 BLLR 30 (LAC) at para [23], where Waglay DJP (as he was
then) stated that: ‘In my view, each condonation application must be decided on its own facts
bearing in mind the general criteria. While the rules are there to be applied, they are not inflexible
but the flexibility is directly linked to and apportioned in accordance with the interests of justice;
prejudice; prospects of success; and finally, degree of delay and the explanation thereof. The issue
[9] Significant with a determination of such applications is that condonation
cannot be had for the mere asking, and that a party is required to make out
a case entitling it to the court’s indulgence by showing sufficient cause, and
giving a full, detailed and accurate account of the causes of the delay 7. In
the end, the explanation must be reasonable enough to excuse the
default
8.
Submissions
[10] The Appellant’s submissions are set out in its affidavit in support of the
Condonation Application.
[11] The Third Respondent’s submissions entailed a non- specific reliance on
the Appellant’s failure to comply with the Rules of this Court in relation to
not filing the Notice of Appeal timeously. He also made reference to the
Appellant not complying with its sexual harassment policy.
Analysis - Length of, and explanation for, the delay
[12] The Appeal was filed approximately 13 (thirteen) days late. The blame for
the late filing appears to fall at the door of the Appellant’s legal
representatives/labour law advisors.
[13] Between 15 and 21 October 2024, the Appellant engaged with its labour
law advisors in respect of challenging the Arbitration Award as it was not
satisfied with its outcome. At this stage, the Appellant’s legal
representatives were of the view that the Arbitration Award should be
challenged by way of a review application in terms of section 145 of the
Labour Relations Act No. 66 of 1995, as amended (the LRA) , which the
Appellant had 6 (six) weeks to proceed with. The Appellant consulted with
its legal representatives on 21 October 2024 to provide them with
instructions in relation to challenging the Arbitration Award by way of a
review application.
[14] On or about 29 October 2024, t he Appellant’s legal representatives
received the bundle of documents relied upon by the Appellant at the
arbitration proceedings. Having had sight of these documents, and
between 29 October and the week of 4 to 8 November 2024, the
between 29 October and the week of 4 to 8 November 2024, the
Appellant’s legal representatives changed their view on whether to proceed
with a review application and instead advised the Appellant to proceed with
an appeal with terms of section 10 of the EEA.
of delay must be viewed in relation to the expedition with which the law expects the principal matter
to be resolved’
7 Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited 2017 (6) SA 90 (SCA) at
para 6.
8 See: Ndlovu v S supra at fn 6 at para 31.
[15] The Appellant’s legal representatives finalis ed the notice of appeal during
the week of 4 to 8 November 2024 and filed the notice of appeal during the
following week, on 13 November 2025.
[16] In Saloojee and Another NNO v Minister of Community Development, 9
Steyn CJ stated the following in relation to a lack of diligence on the part of
an attorney and how a litigant that chose that attorney as its representative
should not be absolved from the normal consequences of such a
relationship, no matter what the consequences of the failure by the attorney
are:
“I should point out, however, that it has not at any time been held that
condonation will not in any circumstances be withheld if the blame lies with his
attorney. There is a limit beyond which a litigant cannot escape the results of
his attorney’s lack of diligence, or the insufficiency of the explanation
tendered. To hold otherwise might have a disastrous effect on the
observance of the Rules of this Court. Considerations ad misericordiam
should not be allowed to become an invitation to laxity. In fact, this Court has
lately been burdened with an undue increasing number of applications for
condonation in which the failure to comply with the Rules of this Court was
due to neglect on the part of the attorney. The attorney, after all, is the
representative whom the litigant has chosen for himself, and there is little
reason why, in regard to condonation of a failure to comply with a Rule of
Court, the litigant should be absolved from the normal consequences of such
a relationship, no matter what the consequences of the failure are.”
[17] In Fibro Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein and
Others,10 Hoexter JA also made reference to the “oft -repeated judicial
warning that there is a limit beyond which a litigant cannot escape the
results of his attorney’s lack of diligence or the insufficiency of the
explanation tendered.”
[18] In UTI South Africa v Pilusa and Others 11 the applicant, through its former
[18] In UTI South Africa v Pilusa and Others 11 the applicant, through its former
attorneys of record, failed to lodge the r eview application timeously and
later sought condonation for the delay. The applicant blamed the
negligence of its previous attorneys for the delay. However, this Court,
relying on Saloojee supra stated that an applicant cannot solely rely on the
tardiness or negligence of its legal representative in a c ondonation
application to justify the delay, and condonation was refused on the basis
9 1965 (2) SA 135 (A) at 141C - E.
10 1985 (4) SA 773 (A) at 787GH.
11 (JR1732/12) [2016] ZALCJHB 270 (21 July 2016) at paras 11 - 15 and 22 - 24.
that good cause was not shown to justify the granting of condonation. The
applicant was held accountable for the lack of diligence on the part of its
former attorneys of record.
[19] The Honourable Justice Nicholson AJA stated the following in the Superb
Meat Supplies CC v Maritz:
12
“In this court and the Supreme Court of Appeal there have been frequently
repeated judicial warnings that there is a limit beyond which a litigant
cannot escape the results of his attorney’s lack of diligence or the
insufficiency of the explanation tendered. It has never been the law that
invariably a litigant will be excused if the blame lies with the attorney. To
hold otherwise might have a disastrous effect upon the observance of the
rules of this court and set a dangerous precedent. It would invite and
encourage laxity on the part of practitioners.”
[20] There are thus limits beyond which a party cannot rely on their legal
representative’s lack of diligence (i.e., carelessness) or negligence when
they are innocent themselves insofar as an explanation is provided for any
delay or non- compliance with time periods. Any delay resulting from
carelessness or inattention by legal representatives in relation to, for example,
a ‘technical issue’ pertaining to whether to proceed with a matter as a review
or an appeal, may not always constitute a compelling reason for the granting
of condonation, even if the client is not culpable.
[21] The limits beyond which the A ppellant cannot rely on its legal
representatives’ lack of diligence or negligence when they are themselves
innocent insofar as an explanation is provided for any delay or non-
compliance with time periods, has not been exceeded in casu. The conduct
of the App ellant and its legal representatives indicate that the Appellant
intended at all material times to challenge the Arbitration Award and
attended to that challenge properly and timeously , without undue delay .
The notice of appeal was filed well within the time period allowed for a
The notice of appeal was filed well within the time period allowed for a
review application. oppose/defend the matter. The Appellant also applied
for condonation expeditiously.
[22] In Saloojee supra, Steyn CJ made it clear that it has not at any time been
held that condonation will not in any circumstances be withheld if the blame
lies with the attorney. There is no such blanket rule. The degree of any
possible carelessness or oversight, whether amounting to negligence or
not, by the App ellant’s legal representatives , is not extreme unlike the
degree of negligence by the attorneys in Saloojee supra.
12 (2004) 25 ILJ 96 (LAC) at 100H.
[23] It is accepted that where the delay is excessive and the explanation is
unreasonable and unacceptable, the Court may refuse condonation without
considering the prospects of success9.
[24] The delay of thirteen days is not excessive or lengthy though and the
explanation provided by the Appellant is reasonable and acceptable. The
Appellant’s legal representatives at least acted expeditiously in – (i) filing
the notice of appeal once they become aware of the possibility of an appeal
to this Court in terms of section 10(8) of the EEA; and (ii) applying for
condonation in relation to the late filing of the notice of appeal.
[25] As such, the prospects of success need to be considered along with any
other relevant factors.
Analysis – Prospects of Success
[26] In Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd 13 it was held that
a consideration of prospects of success merely implies a determination of
the likelihood or chance of success when the main case is heard. A similar
approach was followed in Seatlholo and others v Entertainment Logistics
Service (A division of Gallo Africa Ltd)
14, where it was held that the test is
whether the applicants would succeed in the main action if the facts
pleaded by them in their condonation application were established at trial.
[27] Equally so, the prospects of success do not entail an applicant having to
prove on a balance of probabilities that he or she would succeed when the
merits of the case are heard15.
[28] It cannot be said that the Appellant does not enjoy reasonable or at least
some prospects of success . If the facts pleaded by the Appellant are
established when the appeal is considered, then the Appellant would
succeed with the Appeal.
[29] It is not necessary for the App ellant to prove that it will succeed when the
merits of the matter are considered. It is only necessary to provide a basis
13 2009 30 ILJ 347 (LC) at para 27.
14 (2011) 32 ILJ 2206 (LC) para 24.
13 2009 30 ILJ 347 (LC) at para 27.
14 (2011) 32 ILJ 2206 (LC) para 24.
15 See: Production Institute of South Africa (Pty) Ltd v CCMA and others (2011) 32 ILJ 1712 (LC) at
para 12; See also: SA Democratic Teachers Union v Commission for Conciliation, Mediation and
Arbitration and others (2007) 28 ILJ 1124 (LC) at para 38, where it was held that: ‘A commissioner in
considering prospects of success does not have to pronounce on the merits of the case. All that the
commissioner needs to do is to investigate whether on the averments made by the applicant there is
a prima facie case, that there is a chance of succeeding when the main case is heard. In other words,
to establish whether there is a reasonable prospect of success on the merits, it suffices if an applicant
can show a prima facie case through setting out averments which, if established at the proceedings of
the main case, would entitle the applicant to some relief. The applicant need not deal fully with the
merits of the case’.
to establish that he has a reasonable chance of succeeding when the
matter is heard. The Appellant has done so.
Analysis – Importance of the case and prejudice
[30] The matter does appear to be of extreme importance to the Appellant. It
clearly at all material times intended to challenge the A rbitration Award,
whether by way of a review or an appeal.
[31] The late filing of the notice of appeal also does not materially delay the final
resolution of the Appeal particularly in light of the delay that has been
caused by the Third Respondent’s failure to obtain legal representation by
30 July 2025 and his need for the post ponement of the Appeal to a later
when he had received service of the Appeal on or about 13 November
2024 and service of the condonation application on or about 4 December
2024.
[32] There cannot conceivably be any material prejudice to the Third
Respondent if condonation is granted (as the Third Respondent himself is
seek the postponement of the Appeal) , and even if there is some prejudice
to him , the Third Respondent can be fully compensated for any delay in
this matter by way of an appropriate interest and cost award should the
Appeal not be successful.
[33] The Appellant’s prejudice if condonation is not granted, namely that its
Appeal against the A rbitration Award would not be adjudicated, outweighs
any possible prejudice that the Third Respondent may suffer if condonation
is granted.
[34] If one has regard to the nature of the relief sought and the effect of the
delay on the administration of justice, it cannot be said that the granting of
condonation would not be in the interests of justice.
[35] I am satisfied that the Appellant has shown that it has reasonable
prospects of success and that the granting of condonation would not
materially prejudice the Third Respondent or prejudice him more than the
Appellant would be prejudiced if condonation was not granted.
[36] In all the circumstances, I am satisfied that the Appellant has established
[36] In all the circumstances, I am satisfied that the Appellant has established
that it is in the interest of justice that condonation be granted, that there is
good cause for the granting of condonation, and that a proper case has
been made out for condonation.
The Third Respondent’s request for a postponement
[37] The Third Respondent sought a postponement of the Appeal in order t o
obtain legal representation and file papers opposing the Appeal . He
indicated that he had previously approached the SASLAW Pro Bono office
as well as Legal Aid for assistance but was unsuccessful in obtaining
assistance. In relation to his attempt to obtain assistance from the
SASLAW Pro Bono office, he indicated that it refused to assist him as his
matter involved the SASLAW President’s law firm.
[38] The Appellant submitted that it would not be in the interests of justice to
allow the Third Respondent a postponement as it would serve no purpose
as the Third Respondent had ‘knocked on all doors already’ and was
unable to obtain legal representation, that the processes of this Court were
not so inaccessible for the Third Respondent that he would require legal
representation to set out his thoughts in respect of opposing the Appeal,
and that the Third Respondent was aware of the Appeal for some time and
had not obtained legal representation during that period.
[39] It is trite that the granting of an application for postponement is not a right,
but an indulgence granted by this Court in the exercise of a judicial
discretion. It is also trite that an application for a postponement must be
bona fide and not used simply as a technical manoeuvre for the purpose of
obtaining an unfair advantage over the opposing party.
[40] In considering an application for a postponement, the Court must also
weigh up the balance of convenience or inconvenience to both parties –
i.e., the prejudice which will be caused by a postponement to the party
opposing the postponement against the prejudice which will be caused to
the party seeking the postponement if the application is not granted.
[41] In exercising this judicial discretion, I am of the view that the request for a
postponement is bona fide and is not a tactical manoeuvre by the Third
Respondent to obtain an unfair advantage over the Appellant.
Respondent to obtain an unfair advantage over the Appellant.
[42] As the Appeal could not proceed on 30 July 2025, unless this Court
provided an ex tempore judgment in the Condonation Application (and
granted the Appellant such condonation), which this Court was not willing
to do in the circumstances, the matter had to be postponed in any event.
The earliest available date to which the matter could be postponed was 14
October 2025. A postponement of the matter to that date would provide the
Third Respondent with a sufficient opportunity to obtain legal
representation and file his papers opposing the Appeal.
The Appeal
[43] The merits of the Appeal will not be considered at this time in light of the
postponement of the matter.
Costs
[44] Taking into account all of the relevant facts and circumstances and having
regard to for the requirements of law and fairness, I do not consider it
appropriate to make a costs order and I exercise my discretion as to costs
accordingly.
[45] In the circumstances, the Court makes the following order:
Order
[46] The late filing of the Notice of Appeal is condoned.
[47] The Appeal is postponed to 14 October 2025.
[48] The parties are to comply with the remaining provisions of Rule 66 prior to the
hearing of the Appeal on 14 October 2025 to the extent that such provisions
have not been complied with yet.
[49] No order is made as to costs.
_____________________
M Sass
Acting Judge of the Labour
Court of South Africa
Appearances
For the Appellant: Dr R Orton (Snyman Attorneys).
For the Third Respondent: The Third Respondent appeared in person.