IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D304/24
Not Reportable
In the matter between:
Ithala Development Finance Corporation Applicant
and
Walter Mveli Zuma First Respondent
Commission for Conciliation Mediation and Arbitration. Second Respondent
Commissioner P Naidoo NO Third Respondent
Heard: 24th April 2025
Delivered: 01st October 2025
JUDGMENT
MM Govender AJ
2
INTRODUCTION
[1] This is an application to review the Condonation Ruling issued by the T hird
Respondent under the auspices of the second respondent. The ruling 2nd April 2024
granted condonation of the late filing of the Arbitration referral by the First
Respondent.
It is noted that the arbitration hearing that proceeded subsequent to said ruling was
still in progress and was incomplete at the time of this referral .
RELIEF SOUGHT
[2] The Applicant indicated the relief it seeks as follows :
(i) Condonation of the the applicant’s failure to institute the
review application within the prescribed 6 weeks after the
arbitration award was issued.
(ii) Review and Set Aside of the arbitration award made by the
Third Respondent.
(iii) Substitution of the award made by the Third Respondent
with an order dismissing the application for condonation of
the late arbitration referral.
(iv) A Costs Order against the Respondent if the review
application is opposed.
THE LAW
[3] The fundamental question is whether or not it is just and equitable for this court
to grant this application noting that it was brought whilst the Arbitration hearing was
on going.
[4] A condonation ruling that is reviewed (whilst the arbitration is on going ) must
meet the requirements of S158(1B) of the Labour Relations Act (66 0f 1985) ‘ LRA’ .
A commissioner m ay not do so unless the Court is convinced that it is ‘ just and
equitable’ to do so.
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[5] This is a stringent test .
The review applicant must show that the Commissioner committed a material error of
law or fact that resulted the Condonation ruling that is the subject of the Review
application.
[6] For a considerable period the popular authority on condonations
was the judgment in Melane v Santam Insurance Company Ltd
1 . The
noun ‘conspectus’ used in the judgment has peppered many
condonation rulings and judgements thereafter and perhaps rightly so .
Courts are required to balance an overview of factors in applying its
discretion in determining its decision. An excellent explanation for the
delay may for instance counterbalance a lengthy delay.
[7] Our apex court in Grootboom v NPA and another
2 Zondo J (as
he was then) said that ‘ the standard for considering an application for
condonation emphasized the over arching importance of the interests of
justice. After all the factors are balanced the court must determine
whether it is in the interests of justice to grant the condonation
FACTUAL PRECIS’ ( as discerned from the papers)
[8] The first respondent was employed by the Applicant as an
Assistant Administrator.
[9] On or about November 2022 the first Respondent was charged with various
counts of misconduct. A disciplinary hearing was held. The first respondent elected
not to lead any evidence in his own defence or to call any witnesses to testify on his
behalf.
[10] After the disciplinary enquiry on 19
th April 2023 the first respondent was found
guilty and was dismissed by the Applicant.
4
[11] On 28 th April 2023 the first respondent referred a conciliation dispute to the
CCMA.
The Conciliation was held on 26 th May 2023 after which the Comissioner issued a
certificate of outcome indicating that the dispute remained unresolved.
[12] The first respondent submitted a 7.13 Arbitration referral with a condonation
application to the CCMA on 6th November 2023.
[13] The Applicant filed its answering affidavit opposing said condonation
application on 8th November 2023.
The first respondent filed its replying affidavit on 19th January 2024.
[14] Condonation was granted by the Third Respondent on 2nd April 2024.
[15] This Review application filed slightly late itself seeks condonation for said delay
and seeks to review and set aside the Condonation ruling.
The Condonation Application
[16] The condonation application indicated that the referral was 19 days late.
The reason for said delay (in the referral to the CCMA) was simply :
“The commissioner Mr Mbatha advised that he was going to put my application for
arbitration”
The third respondent’s ruling
[17] The salient aspects of the ruling :
(i) the commissioner’s acceptance that the 7.13 CCMA arbitration
referral was in fact 73 days late ;
(ii) His determination that said degree of delay was ‘ excessive’;
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(iii) His acceptance of the first respondent’s explanation that the
the delay was occasioned by the first respondent’s averment
that Commissioner Mbatha had undertaken the responsibility of
referring the matter to arbitration as connoted in the following
paragraph of the Ruling
“ I accept that the explanation as it is probable that he could
have
Been erroneously advised by the Commissioner.”
(iv) On the matter of prospects of success the Commissioner says
“ ..there appears to be dispute of facts which must be further
ventilated in the interests of justice’.
(v) The only aspect dealt with on ‘ Prejudice’ was
“ I do not believe that the respo ndent will be sever ely
prejudiced”.
ANALYSIS OF THE RULING AND ASSESSMENT
[18] Firstly t he applicant’s failure to institute the review application within the
prescribed 6 weeks after the arbitration award was issued was a very slight delay
and is condoned.
[19] In terms of Rule 18 (CCMA Rules of Conduct)
3 the arbitration referral has to be
submitted within 90 days of the completion of the Conciliation.
[20] It is trite that CCMA days are counted as calendar days not court days and
therefore includes public holidays and weekends.
[21] The certificate of outcome of the Conciliation was issued by the CCMA on 26
th
May 2023. In terms of CCMA Rule 18 the Arbitration referral should have been
submitted within 90 days (ie) by 26th August 2023.
The Arbitration referral was submitted on 6th November 2023.
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[22] The referral was technically 72 days late but indicated by the commissioner as
73 days late. This is not significant.
[23] The first matter to dispense with is the disparity in the calculations of the extent
of the delay.
The First Respondents representation is that the 7.13 referral was 19 days late.
The Applicants representation is that the 7.13 referral was 73 days late.
This is correct by calculation of the calendar days between 26th August 2023 and 6th
November 2023.
In its Founding affidavit the First Respondent indicates that the days were calculated
by using ‘court’ days. This is erroneous as CCMA referral days are calculated using
calendar days. This might well ( at least partially) explain the disparity.
[24] Be that as it may the commissioner accepted that the referral was 73 days and
that said delay was ‘excessive’ . In line with established criteria the criteria this delay
would have had to be accompanied by a convincing explanation . This explanation
is also required to cover the whole period.
[25] The First Respondent did not present a proper convincing explanation to the
Commissioner for said delay. In point of fact the explanation for said extensive delay
was placed at the door of the Conciliation Commissioner Mbatha.
[26] The Third Respondent seems to have framed his decision around the
acceptance that Conciliation Commissioner Mbatha did tell the First Respondent that
( commissioner) would attend to the 7.13 referral.
[27] This is an extraordinary averment as it is trite that it is not the ordinary duty of
the Conciliation Commissioner to attend to said administrative task which is the
prerogative of the First Respondent. It also makes little sense - after a unsuccessful
Conciliation process it is the First Respondent who makes a decision of whether or
not to refer the matter to arbitration.
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[28] The Conciliation Commissioner simply does not have the authority or duty to do
so. There is also no supporting evidence for this assertion in the form or an affidavit
or other oral evidence.
The third respondent simply accepted the probability that the first respondents ’
averments were probably correct and that he did attempt the engagements with the
CCMA .
[29] In its answering affidavit at point 12.4 the first respondent suggests that the
onus was on the a pplicant to rebut its averments in its condonation application. This
is a misunderstanding of the onus.
He who avers must prove is a time worn adage of evidence.
The first respondent bore the onus of proving its averments orally or in writing – it is
only thereafter that a onus to rebut might have moved to the applicant.
[30] The Third Respondent would not only have required a credible explanation he
would also have required an extensive explanation that covered the whole period of
the delay accepted by the third respondent as ‘ excessive’.
[31] The Constitutional Court held in Van Wyk v Unitas Hospital and Another
3 :
“An applicant for condonation must give a full explanation for the delay. And, what is
more, the explanation given must be reasonable.
[32] It is a well established principle that an application for condonation may be
refused without a reasonable and acceptable explanation for the delay, irrespective
of good prospects of success.
This principle was affirmed in Colett v CCMA
4 and others in which the LAC held :
There are overwhelming precedents in this Court, The SCA and the Constitutional
Court that where there is a flagrant or gross failure to comply with the rules of Court
Condonation may be refused without considering the prospects of success.
[33] The failure in the Conciliation Commisioners decision is futher exacerbated not
only by the absence of any proper explanation ( for the delay) and then even further
by no proper explanation for the whole period of the delay.
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[34] The first respondents averment at Paragraph 10 of its replying affidavit refers to
the attempts he made to reach Conciliation Commissioner Mbatha but avers that he
had not been able to do so.
The third respondent accepted this averment. This was not reasonable.
If the first respondent had intended to enquire about the status of the arbitration he
would have do so with the administration of the CCMA which is generally required to
be accessible to members of the public. If the first respondent had followed this
process he would have realised very early in the process that his matter had in fact
not been referred to arbitration and would have been able to lodge his arbitration
within the 90 day period allowed by Rule 18 of the CCMA rules.
[35] The third respondent also dealt with the first respond ent’s prospective merits
very briefly and simply stated that the conflicting versions should be ventilated at the
arbitration.
This court notes that ordinarily a arbitration is a hearing ‘ de novo’ . This court
however notes also that the first respondent challenged the substantive fairness of
his dismissal at the internal hearing and confirmed in his answering affidavit at
paragraph 13.2 that he did not testify or lead any witnesses at said disciplinary
hearing. The third respondent ought to have determined at least a ‘ prima facie ‘
indication of the first repondent’s prospective merits.
It is noteworthy that the first respondent’s representations that the applicant did not
provide any evidence against the first respondent ( at the internal hearing) is not
consistent with the internal chairpersons report. At page 12 of the report ( page 95 of
the applicant’s pleadings).
“The employees through their representatives indicated that they were not calling
witnesses including not allowing the employees they were representing to take the
witness stand since they believed that the employer did not present sufficient ( own
witness stand since they believed that the employer did not present sufficient ( own
emphasis) evidence . As chairperson I took it upon myself to caution the
representatives of the implications…..they still maintain thei r position….thus made
an application for absolution from the instance” .
[36] The first respondent also determined that the applicant would not be severely
prejudiced but did not profide and proper substantiation for said determination.
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[37] In terms of S158(1B) of the Labour Relations Act (66 0f 1985) ‘LRA’ . this Court
may not review and set aside a Condonation Ruling whilst an Arbitration is in
process unless convinced that it is ‘ just and equitable’ and in the interests of justice
to do so.
[38] On the basis of a conspectus of all the relevant factors - It is just and equitable
and in the interests of justice to do so.
CONCLUSION
1. The applicant’s failure to institute the review application within the prescribed 6
weeks (after the arbitration award was issued) is a minor delay and is
condoned.
2. The ruling issued by the third respondent is reviewed and set aside.
3. The court finds no basis on which to award costs .
ORDER
(a) The applicant’s failure to institute the review application within the
prescribed 6 weeks (after the arbitration award was issued) is condoned.
(b) The Condonation Ruling issued by the Third Respondent is reviewed and
set aside.
(c) The Ruling issued by the Third Respondent is substituted with an order
refusing Condonation of the late referral and is substituted with an order
dismissing the application for condonation of the late arbitration referral.
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(d) No Costs order
________________________
MM Govender
Acting Judge of the Labour Court of South Africa
Appearances
Applicant : Adv M N Xulu instructed by Zuma and Partners Inc Attorneys
Respondent: Mr P Shangase Attorney. AP Shangase & Associates Attorneys
___________________________________________________________________
1. 1962(4) SA531(A) 532 C-E
2. 2014 35 ILJ 121 CC
3. 2007 ZACC 24
4. 2014 6 BLLR 523 LAC