IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS689/24
In the matter between:
SIPHIWE MIRRIAM CHONGO Applicant
and
RSC CONSULTING SERVICES (PTY) LTD Respondent
Heard on: 01 August 2025
Delivered on: 09 October 2025
JUDGMENT
SASS, AJ
Introduction
[1] This is a n application for condonation in respect of the late filing of the
Applicant’s Statement of C ase. The Statement of C ase was filed
approximately 82 (eighty-two) days late.
2
[2] The Respondent opposes the condonation application.
Relevant background facts
[3] On or about 27 January 2024, the Applicant was dismissed by the Respondent
for participating in an unprotected strike which took place on 26 January 2024.
The strike by certain of the Respondent’s employees was, inter alia , in
retaliation to the adverse impact that the Respondent’s biometric system
caused on their respective disciplinary records.
[4] The unprotected strike occurred on the Respondent’s shop floor, also referred
to as the grocery site. The Applicant ordinarily worked on the grocery site
(where the unprotected strike was taking place). During the strike, the
Respondent requested that non-striking employees move from the grocery site
to the perishable site so that they could continue to render the ir services. The
Applicant did not move to the perishable site but remained on the grocery site
(in the vicinity of what she referred to as the podium) while the strike continued
(for what appears to be the whole day on 26 January 2024) . The Applicant’s
explanation for not moving to the perishable site was that she was not trained
to work on the perishable site.
[5] Subsequent to her dismissal, the Applicant referred an unfair dismissal dispute
to the CCMA in terms of section 191(5)(b)(iii) of the L abour Relations Act No.
66 of 1995, as amended (the LRA).
[6] On or about 21 June 2024, conciliation proceedings were held and a
certificate of outcome of dispute was issued which indicated that the dispute
concerned a dismissal related to participation in an unprotected strike, that the
dispute remained unresolved, and that the next step was for the dispute to be
referred to this Court.
[7] During July 2024, the Applicant referred her unfair dismissal dispute to
arbitration at the CCMA, apparently with the assistance of CCMA staff /officials
although the certificate of outcome of dispute indicated that the next step to be
taken was to refer the dispute to this Court.
3
[8] On or about 31 July 2024, the Applicant went to the Wits Law Clinic to seek
assistance with her unfair dismissal dispute. The Wits Law Clinic advised the
Applicant that it would assist her with referring the unfair dismissal dispute to
this Court. The Applicant was assisted by two student counsellors, under the
supervision of Dieketseng Damane (an admitted attorney practicing as such at
the Wits Law Clinic).
[9] At some point between 31 July and 13 August 2024, t he CCMA informed the
Applicant that the arbitration proceedings in respect of her unfair dismissal
dispute had been enrolled for hearing on 17 September 2024.
[10] On or about 13 August 2024, the Applicant sent an email to the student
counsellors assisting her informing them that the arbitration had been enrolled
for arbitration at the CCMA on 17 September 2024 . It appears therefore that
the Wits Law Clinic only became aware that the dispute had been referred to
arbitration about two weeks after the initial consultation with the Applicant.
[11] The Applicant was legally represented at the arbitration proceedings on 17
September 2024 at the CCMA although her founding affidavit does not
indicate if the Wits Law Clinic were her legal representatives at the arbitration.
[12] The Respondent challenged the jurisdiction of the CCMA to arbitrate an unfair
dismissal dispute relating to the Applic ant’s participation in an unprotected
strike, as a point in limine. The Applicant’s legal representative did not oppose
the jurisdictional point and appears to have been in agreement that the dispute
should have been referred to this Court.
[13] The CCMA issued a jurisdictional ruling dated 17 September 2024 (by
Commissioner R Byrne) indicating that it lacks the jurisdiction to arbitrate the
unfair dismissal dispute as it relates to a dispute in terms of section
191(5)(b)(iii) of the LRA.
[14] On or about 09 December 2024, the Wits Law Clinic delivered the Applicant’s
[14] On or about 09 December 2024, the Wits Law Clinic delivered the Applicant’s
Statement of Case, referring her unfair dismissal dispute to this Court for
adjudication.
4
The ninety-day time period in terms of section 191(11) of the LRA
[15] It is trite that the ninety-day time period referred to in section 191(11) of the LRA
is calculated from the date on which the CCMA issues the certificate of outcome
of dispute ( 21 June 2024 in casu). The Statement of Claim should have been
delivered on or before approximately 09 September 2024.
[16] It was common cause that the Applicant had at least referred the unfair
dismissal dispute to this Court within ninety days of the date of the jurisdictional
ruling (i.e. on or about 9 December 2024 ), thus referring the dispute within the
correct time period, just calculated from the wrong date.
Applicable legal principles
[17] The applicable legal principles are trite and the approach to be adopted by this
Court in condonation applications is well settled. It is not necessary to burden
this judgment with a repetition of all the applicable authorities, save to refer to
a few.
[18] In Steenkamp and Others v Edcon Limited 1, the Constitutional Court re -
affirmed the principle that granting condonation must be in the interests of
justice and 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
1 [2019] 11 BLLR 1189 (CC), specifically the Constitutional Court’s second judgment.
2 2014 (1) BCLR 65 (CC) at para 20.
5
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 excuse the default.
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
[19] The Constitutional Court had also previously in Brummer v Gorfil Brothers
[19] The Constitutional Court had also previously 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.
3 Ibid at paras 22-3 and 51.
4 2000 (2) SA 837 (CC).
6
[20] The interests of justice must be determined by reference to all relevant factors
outlined in Melane v Santam Insurance Co Ltd5, 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. The following portion of the Appellate Division ’s judgment in the
Melane case outlined the se relevant factors – “…. Among the facts usually
relevant are the degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily, these facts are
interrelated: they are not individually decisive, for that would be a piecemeal
approach incompatible with a true discretion, save of course that if there is no
prospects of success there would be no point in granting condonatio n…..
What is needed is an objective conspectus of all the facts.”
[21] The above principles have long been qualified by the rule that where there is
an inordinate delay that is not satisfactorily explained, the prospects of
success are immaterial , and without prospects of success, no matter how
good the explanation for the delay, an application for condonation should be
refused.7
[22] This Court has a discretion when considering a condonation application which
must be exercise d judicially upon a consideration of the facts of each case.
The granting of condonation is a matter of fairness to both sides.
The Applicant’s submissions
[23] Whilst no evidence was placed before this Court in relation to why an unfair
dismissal dispute which arose on or about 27 January 202 4 was only
conciliated at the CCMA during June 202 4, it does appear that the Applicant
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-
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
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
of delay must be viewed in relation to the expedition with which the law expects the principal matter
to be resolved’
7 NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC).
7
did at all material times intend to pursue her unfair dismissal dispute and act in
good faith. The Applicant’s own actions do not appear to be dilatory.
[24] As for the referral of the dispute to arbitration at the CCMA instead of to this
Court as indicated in the certificate of outcome of dispute, the Applicant
contends that as a layperson she followed the advice of CCMA officials in this
regard.
[25] The Applicant contends that if her legal representatives had issued her
Statement of Case referring her unfair dismissal dispute to this Court after the
dispute had been referred to the CCMA for arbitration but before the dispute
was adjudicated or finalized at the CCMA (so at some point between 13
August and 17 September 2024) , a special plea of lis pendens would have
been raised by the Respondent in this Court in response to the Statement of
Case.
[26] The explanation which has been provided for the delay and the various
periods of the delay is not overly detailed. In essence, the explanation for the
delay relates to the incorrect advice and assistance received from CCMA
staff/officials in respect of whether, after the certificate of outcome of dispute
was issued, the unfair dismissal dispute should have been referred to the
CCMA for arbitration or this Court for adjudication and the incorrect advice and
assistance received from the Wits Law Clinic through an admitted attorney,
Dieketseng Damane , and the two student counsellors in respect of : (i)
whether the principle of lis pendens was applicable and precluded the
Applicant from withdrawing her dispute at the CCMA prior to the arbitration on
17 September 2024 and the jurisdictional ruling being obtained [the Wits Law
Clinic being of the view that lis pendens was applicable and precluded the
withdrawal of the dispute at the CCMA before the arbitration set down date];
and (ii) whether the ninety day time period for the referral of the unfair
and (ii) whether the ninety day time period for the referral of the unfair
dismissal dispute to this Court in terms of section 191(5)(b)(iii) commenced on
the date on whi ch the certificate of dispute was issued or on the date of the
jurisdictional ruling [the Wits Law Clinic being of the view that it was the latter].
The views of the Wits Law Clinic were regrettably erroneous on both of these
8
aspects (as was the advice and assistance received from the CCMA
staff/officials).
[27] Accordingly, whether or not a reasonable and acceptable explanation has
been provided for the delay turns primarily on the conduct of the Applicant’s
legal representatives. If was for this reason that I requested the parties to
provide me with written submissions in relation to the case of Saloojee and
Another NNO v Minister of Community Development, 8 and the limits to which
an applicant may rely on the negligence of her legal representatives (through
the provision of incorrect legal advice) and whether reliance on such incorrect
advice may excuse an applicant’s non -compliance with the relevant time
periods.
[28] Quite astonishingly, the Applicant’s written submissions prepared subsequent
to the date of hearing (the Applicant’s post-hearing written submissions), made
no mention of the Saloojee case and the principles relating to the limits of a
legal representative’s negligence and the consequences of such negligence
being imputed to the Applicant. This was another telling example of the
negligence of the Applicant’s legal representatives (besides that which led to
the need for a condonation application).
[29] The Wits Law Clinic also persisted with its erroneous contentions in relation to
lis pendens and the date from which the ninety -time period should be
calculated. It did so notwithstanding the misgivings which I expressed to the
Applicant’s counsel during argument in this regard.
[30] The erroneous advice received from CCMA staff/officials was only , however,
partly to blame and the need for a condonation application could have been
avoided notwithstanding such erroneous advice and assistance , if the Wits
Law Clinic had, between 13 August (the date on which the Applicant provided
it with the Notice of Set Down for the arbitration on 17 September 2024) and 9
September 2024 (being the day on which the ninety day referral period
September 2024 (being the day on which the ninety day referral period
calculated from the date on which the certificate of outcome of dispute was
issued, lapsed) , withdrawn the request for arbitration by the CCMA and
8 1965 (2) SA 135 (A) at 141C - E.
9
referred the unfair dismissal dispute to this Court for adjudication in
accordance with the certificate of outcome of dispute which had already been
issued by 31 July 2024 when the Applicant first consulted with the Wits Law
Clinic. The Wits Law Clinic had a period of almost three weeks within which to
do the above , in which event the Applicant would not have required
condonation.
[31] The Applicant contends in respect of the prospects of success, that she did
not participate in an unprotected strike (thus disputing the substantive fairness
of her dismissal) and that she was not given a hearing prior to her dismissal
(i.e., an opportunity to say why she should not be dismissed). She also denied
receiving any ultimatum s (although she does deal with the contents of the
various ultimatums of the Respondent in some detail in her founding affidavit).
[32] In closing, the Applicant submitted that she had provided a reasonable and
acceptable explanation for the delay, that she had good prospects of success,
that there would not be undue prejudice to the Respondent if condonation was
granted and that the granting of condonation was in the interests of justice.
The Respondent’s submissions
[33] The Respondent contends in relation to the explanation for the delay that: (i)
eighty-two days is unreasonably long [although it did concede during argument
that such a delay was not excessive ]; and (ii) no explanation is provided for
the period from 17 September (when the jurisdictional ruling was issued) and
09 December 202 4 (when the referral was made to this court). It does,
however, appear that this second period of the delay is covered by the
Applicant’s explanation that the Wits Law Clinic did not lau nch the review
application before 09 December 2024 as it understood that it had ninety days
from 17 September 2024 to do so.
[34] The Respondent contends in relation to prospects of success that: (i ) the
[34] The Respondent contends in relation to prospects of success that: (i ) the
Applicant refused to go and work in the perishable s ite after receiving the
ultimatums, unlike many other employees who did and who were not
dismissed; (ii) the Applicant was provided with various ultimatums by it and
10
given a chance to make representations in respect of why she should not be
dismissed (in the final ultimatum).
[35] In relation to prejudice, the Respondent relied on ‘trial prejudice’ – it indicated
that it would need to bring witnesses to the trial proceedings and would lose
operational time due to that , as well as having to wait about 3 (three) years
before the unfair dismissal dispute was heard by this Court at trial. This,
however, appears to be a form of prejudice that the Respondent would suffer
regardless of whether a condonation application was required or not.
[36] The Respondent’s opposition to the condonation application does of course
also contribute to the delay in finalizing the matter. Whilst the Respondent is
well within its rights to oppose any condonation application, its own conduct in
opposing the condonation application does contribute to the prejudice which it
complains of.
[37] As requested by this Court, the Respondent also prepared written submissions
subsequent to the date of hearing (the Respondent’s post -hearing written
submissions). In those written submissions, the Respondent contends that
there are clear limits on the extent to which the negligence of an applicant’s
legal representatives can be excused and that has been exceeded in this
matter due to the policy consideration s underlying these limits – preventing
laxity in practice, reducing the burden on courts, and maintaining the principles
that clients must bear responsibility for their chosen representatives. The
Respondent d id not, however, provide a cogent explanation why in the
circumstances of this particular case, and a delay of eight-two days, that these
clear limits have been exceeded – the explanation relies on generic
submissions drawn from policy considerations.
[38] It is apparent from the relevant authorities that in certain circumstances an
applicant must bear responsibility for the actions of its chosen legal
applicant must bear responsibility for the actions of its chosen legal
representatives but that there are also circumstances in which an applicant
does not have to bear that responsibility.
[39] As for the argument put forward in relation to student coun sellors giving the
advice and there not being any affidavit from these unnamed student
11
counsellors, I am of the view that nothing turns on this. A confirmatory affidavit
was provided by the admitted attorney responsible for this matter at the Wits
Law Clinic, and responsible for supervising the student coun sellors
(Dieketseng Damane).
Analysis
[40] Notwithstanding the Wits Law Clinic receiving a copy of the CCMA’s Notice of
Set Down for the arbitration of the unfair dismissal dispute on or about 13
August 2024, which confirmed that the arbitration was enrolled for hearing on
17 September 2025, it decided that the proceedings before the CCMA should
be concluded first before the dispute was referred to this Court for
adjudication, apparently in alignment with the doctrine of lis pendens.
[41] The relevant ninety day -time period for the referral of an unfair dismissal
dispute relating to participating in an unprotected strike was calculated by the
Wits Law Clinic from the date of the CCMA’s jurisdictional ruling (being 17
September 2024) instead of from the date on which the certificate of outcome
of dispute was issued (being 21 June 2024). The Applicant’s Statement of
Case would have been due for delivery on or about 9 September 2024 if the
ninety day-time period had been calculated from 21 June 2024.
[42] The Applicant’s explanation for the delay in referring the unfair dismissal
dispute to this Court for adjudication has two legs: firstly, the erroneous advice
received from CCMA staff/officials during July 2024 that the unfair dismissal
dispute should be referred to arbitration at the CCMA (instead of to this Court
for adjudication; and secondly, the erroneous advice received from the Wits
Law Clinic in relation to – (i) it deciding that the proceedings before the CCMA
should be concluded first before the d ispute was referred to this Court for
adjudication, apparently in alignment with the doctrine of lis pendens; and (ii)
the relevant ninety day -time period for the referral of the dispute being
the relevant ninety day -time period for the referral of the dispute being
calculated from the date of the CCMA’s jurisdictional ruling (17 September
2024) instead of from the date on which the certificate of outcome of dispute
was issued (21 June 2024).
12
[43] If the ninety day -time period had been calculated from 21 June 2024, the
Applicant’s Statement of Case would have been due for delivery on or about 9
September 2024 – the Wits Law Clinic had at least between approximately 13
August and 9 September 2024 (a period of roughly three weeks) to refer the
dispute to this Court without requiring condonation (after becoming aware of
the enrolment of the arbitration proceedings at the CCMA). The Applicant
appears to be blameless in this regard. It is her legal representatives (the Wits
Law Clinic ) who acted negligently and without the necessary care, rigour or
conscientiousness.
[44] In the Saloojee case, 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
normal consequences of such a relationship, no matter what the
consequences of the failure are.”
13
[45] The Honourable Justice Nicholson AJA stated the following in the Superb Meat
Supplies CC v Maritz:9
“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 of 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.”
[46] In UTI South Africa v Pilusa and Others 10 the applicant, through its former
attorneys of record, failed to lodge the Review 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 the Saloojee
case stated that an applicant cannot solely rely on the tardiness or negligence
of its legal representative in a condonation application to justify the delay, and
condonation was refused on the basis 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.
[47] The most often quoted portion of the judgment of the Appellate Division in the
Saloojee case is set out above. Prior to those remarks, the Appellate Division
does, however, state that it has on a number of occasions demonstrated its
reluctance to penalise a litigant on account of the conduct of his attorney. It then
makes references to its judgment in R v Chetty 1943 AD 321, a case in which
the delay was even longer than in the Saloojee case and the excuses offered by
the attorney concerned was clearly unsatisfactory, but where it nevertheless
granted condonation. In the Chetty case, the Court remarked that the applicant
granted condonation. In the Chetty case, the Court remarked that the applicant
himself was not responsible for the delays which occurred save insofar as it the
applicant continued to allow his case to remain in the hands of an attorney who
had shown himself unworthy of such confidence.
9 (2004) 25 ILJ 96 (LAC) at 100H.
10 (JR1732/12) [2016] ZALCJHB 270 (21 July 2016) at paras 11 - 15 and 22 - 24.
14
[48] The Appellate Division then goes on to mention its judgment in Regal v
Superslate (Pty) Ltd 1962 (3) SA 18 AD at p23, where the Court came to the
conclusion that the delay was entirely due to the neglect of the applicant’s
attorney, and held that the attorney’s neglect should not, in the circumstances of
the case, debar the applicant, who was himself in no way to blame, from relief.
[49] It is after dealing with the Chetty case and the Regal Superslate case that the
Appellate Division stated the oft -quoted portion of its judgment in the Saloojee
case. That portion of the judgment should not be considered in isolation for that
reason, but within the context of the references made to the judgments in the
Chetty case and Regal Superslate case.
[50] The Court in the Saloojee case then went on to state the following after its
reference to the two above -mentioned cases – “A litigant, moreover, who
knows, as the applicants did, that the prescribed period has elapsed and that an
application for condonation is necessary, is not entitled to hand over the matter
to his attorney and then wash his hands of it. If, as here, the stage is reached
where it must become obvious also to a layman that there is a protracted delay,
he cannot sit passively by, without so much as directing any reminder or enquiry
to his attorney (cf. Regal v African Superslate (Pty.) Ltd., supra at p. 23 i.f.) and
expect to be exonerated of all blame;”.11
[51] Consequently, it appears to me, that when deciding whether the limit has been
exceeded beyond which the Applicant cannot escape the results of the lack of
diligence, ineptitude or remissness of her legal representatives, that limit is
reached if the Applicant knew or ought reasonably to have known that the
ninety day time period: (i) was to be calculated from 21 June and not 17
September 2024; (ii) had elapsed by 9 September 2024 already; and (iii) that a
condonation application was necessary. In such circumstances, the Applicant
condonation application was necessary. In such circumstances, the Applicant
would not be entitled to hand over the matter to her legal representatives and
then ‘wash her hands of the matter’.
[52] It cannot be said that there is any evidence before this Court in relation to the
Applicant knowing, or ought reasonably to have known , that the ninety day time
period: (i) was to be calculated from 21 June and not 17 September 2024; (ii)
11 Saloojee supra at p141
15
had elapsed by 9 September 2024 already; and (iii) that a condonation
application was necessary.
[53] In my assessment and having regard to the above, I find that the limit has not
been exceeded beyond which the Applicant cannot escape the results of the
lack of diligence, ineptitude or remissness of her legal representatives. The
Applicant also did not appear to have much choice when it came to choosing
her legal representatives, with there being very few options available to parties
that cannot afford to pay for legal representation.
[54] The limits beyond which the Applicant 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 Applicant and her legal
representatives indicate that she intended at all material times to pursue the
unfair dismissal dispute, whether in the CCMA or this Court.
[55] In the Saloojee case, 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 negligence by
the Applicant’s legal representatives is not extreme unlike the degree of
negligence by the attorneys in Saloojee case.
[56] The delay of eighty-two days it is less than the statutory time period of ninety
days within which a dispute of this nature is to be referred to this Court for
adjudication after a certificate of outcome of dispute has been issued. The
explanation provided by the Applicant for the delay is not unreasonable and
unacceptable although it is lacking in some detail in certain areas.
[57] As the limits to which the Applicant may rely on the negligence of her legal
representatives have not been exceeded in the circumstances having regard to
the relevant authorities, and as the Applicant has therefore provided an
the relevant authorities, and as the Applicant has therefore provided an
explanation that meets the minimum threshold of a reasonable and acceptable
explanation for the delay , the prospects of success must be considered along
with the other relevant factors.
16
[58] Both this Court and the Labour Appeal Court have previously recognized that in
certain circumstances, a bona fide explanation for a delay based upon an
erroneous referral to the CCMA may constitute a satisfactory explanation for the
delay in a subsequent referral to this Court. 12 In this regard, the Labour Appeal
Court in SATAWU obo Members v South African Airways (Pty) Ltd and Others13
stated the following: “ The uncontested explanation for the delay is that most of
the period of the delay was taken up by the referral to arbitration. The remainder
of the period was caused by internal processes within the appellant in taking a
decision to proceed with the claim and instructing attorneys accordingly.
Although the period is lengthy, it has been, in my view, adequately explained
and it would be unfair to punish the individual employees for a process they did
not have direct control over.”
[59] It is common cause that t he Statement of Case was delivered eight -two days
late. This delay , whilst not insignificant, is not excessive though, particularly in
the context of action proceedings instead of motion proceedings.
[60] The unfair dismissal dispute has been referred by the Applicant to this Court
within what she understood, based on erroneous advice received from the Wits
Law Clinic, to be the ninety -day time period (ninety days calculated from 17
September 2024). The ninety -day time period should of course have been
calculated from the date on which the certificate of outcome was issued (from
21 June). There is, however, no reason for me to conclude that through any
act/s or omission/s on the part of the Applicant, that she indicated any intention
on her part to abandon the unfair dismissal dispute or waive any of her rights.
[61] The Applicant was regrettably hindered from referring the unfair dismissal
dispute timeously to this Court for adjudication by three interventions or
omissions beyond her control. Firstly, someone at the CCMA informed the
omissions beyond her control. Firstly, someone at the CCMA informed the
Applicant that, notwithstanding the contents of the certificate of outcome of
dispute, she should refer her unfair dismissal dispute to arbitration at the
CCMA. Secondly, the Wits Law Clinic, after being informed on or about 13
August 2024 that the Applicant’s unfair dismissal dispute had been referred to
12 Motloi v SA Local Government Association (2006) 27 ILJ 982 (LAC); National Union of Metalworkers
of SA and Others v Crisburd (Pty) Ltd (2008) 29 ILJ 694 (LC); National Union of Metalworkers of SA
and Others v SA Truck Bodies (Pty) Ltd (2007) 28 ILJ 1603 (LC).
13 [2015] 2 BLLR 137 (LAC) at 16.
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the CCMA for arbitration and that the arbitration had been enrolled for hearing
on 17 September 2024, failed to withdraw the request for arbitration before 09
or 17 September 2024 and refer the dispute to this Court for adjudication.
Thirdly, after the jurisdictional ruling was issued, the Wits Law Clinic delayed the
referral of the unfair dismissal dispute to this Court for adjudication until 09
December 2024.
[62] There is no basis for me to reject the Applicant’s version in relation to what she
was told by someone at the CCMA, having regard to the evidence properly
before me as contained in the parties’ respective affidavits, notwithstanding the
Applicant not providing the name of the person/s at the CCMA who told her this
or providing an affidavit from that person to confirm her version. The Applicant’s
version of course does not amount to hearsay evidence. There is also no basis
for me to reject the Applicant’s ve rsion in relation to the advice which she
received from the Wits Law Clinic.
[63] Whilst the explanation provided could have been more detailed, a sufficiently
satisfactory and bona fide explanation has been provided by the Applicant. The
Applicant acted at all times in accordance with her understanding of what she
was told by the CCMA and the Wits Law Clinic, albeit erroneous in both
instances.
[64] The Applicant’s legal representatives did at least appear to act relatively
expeditiously in applying for condonation once they became aware of the need
to do so.
[65] In my assessment and having regard to the legal principles set out above and
the evidence , properly construed, that served before me, the explanation
tendered by the Applicant is reasonable and acceptable for present purposes.
[66] It is accepted that where the delay is : (i) excessive; and (ii) the explanation is
unreasonable and unacceptable, the Court may refuse condonation without
considering the prospects of success 9. I am in agreement with the
considering the prospects of success 9. I am in agreement with the
Respondent’s concession that the delay is not excessive (although it is no t
trivial either), and as the explanation provided is reasonable and acceptable, it
is therefore necessary for it to consider prospects of success. It is only where
the delay is extremely or unacceptably excessive and there is no reasonable
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and acceptable explanation for the delay that there may be no need to consider
the prospects of success.
[67] As such, the prospects of success must be considered along with the other
relevant factors.
Prospects of Success
[68] In Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd 14 it was held 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.
[69] A similar approach was followed in Seatlholo and others v Entertainment
Logistics Service (A division of Gallo Africa Ltd) 15, 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.
[70] For the purposes of a condonation application, t he consideration of the
prospects of success does not entail an applicant having to prove on a balance
of probabilities that she would succeed when the merits of the case are heard16.
[71] It cannot be reasonably disputed that if the facts pleaded by the Applicant in her
Statement of Case are established at trial, for example, that she did not
participate in the unprotected strike and that she was not given a hearing prior
to being dismissed, that the Applicant would not succeed with her unfair
dismissal dispute – that her dismissal was substantively and/or procedurally
unfair. It is not necessary for the Applicant to prove that she will succeed when
the merits of the matter are considered.
Prejudice and other factors
14 2009 30 ILJ 347 (LC) at para 27.
15 (2011) 32 ILJ 2206 (LC) para 24.
16 See: Production Institute of South Africa (P ty) 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’.
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[72] If condonation is granted, then the matter must proceed to trial. The Applicant
clearly intended to proceed with the unfair dismissal dispute at all material
times.
[73] Whilst the delay of eighty-two days in relation to the referral of the dispute to
this Court for adjudication has regrettably delayed the finalization of this matter,
so has the decision of the Respondent to oppose the condonation application to
some extent as well. The matter has been delayed by the condonation
application to some extent, but even if condonation was not required, a set -
down date for the trial of the matter, even if the dispute had been referred to this
Court by 09 September 2024, any set -down date for trial might only have been
forthcoming in 2026 . An expeditious trial in an opposed action was always
unlikely, even if condonation was not required.
[74] There cannot conceivably be any material prejudice to the Respondent if
condonation is granted . The presentation of the Respondent’s case also does
not appear to be prejudiced in any way by the delay of eight-two days, which
should be seen in light of the months that parties would have to wait for a trial
date in any event once pleadings had closed.
[75] The Respondent did not allege that the memories of witnesses or that
witnesses will become unavailable because of the delay. The prejudice relied
on by the Respondent is prejudice to it s operations caused by witnesses having
to be absent from work when giving evidence, a type of prejudice that the
Respondent would encounter in the circumstances regardless of whether a
condonation application was required or not.
[76] The Applicant’s prejudice if condonation is not granted, namely that the merits
of her unfair dismissal dispute would not be ventilated before this Court,
outweighs any possible prejudice that the Respondent may suffer if condonation
is granted (such as any prejudice to its operations, or legal costs occasioned by
is granted (such as any prejudice to its operations, or legal costs occasioned by
it opposing the unfair dismissal dispute which according to it is without any
prospects).
[77] If one has regard to the nature of the relief sough t and has regard to the effect
of the delay on the administration of justice, which is minimal in the context of
awaiting a trial date once pleadings have closed, I am of the view that the
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granting of condonation would be in the interests of justice in order to permit a
proper ventilation of the merits of the Applicant’s unfair dismissal dispute.
Conclusion
[78] The length of the delay, whilst not trivial, is not excessive. An explanation has
been provided for the delay, which is reasonable, acceptable and bona fide.
The conduct of the Applicant and her legal representatives indicate that the
Applicant intended at all material times to pursue the unfair dismissal dispute,
whether in the CCMA or this Court.
[79] The limits beyond which the Applicant party cannot rely on her legal
representative’s lack of diligence and care, or negligence, when she is herself
not blameworthy insofar as an explanation is provided for any delay or non -
compliance with time periods, has not been exceeded in the circumstances as
there is no reason for me to conclude that the Applicant herself was aware of
the need to file her Statement of Case on or before 9 September 2024.
[80] To the extent that the explanation provided may be lacking in some respects,
a lack of an adequate explanation can be compensated for by other
considerations - it being trite that the factors to be considered are indeed
interrelated and further the regard that must be had for the interests of justice.
[81] It is quite unfortunate that the Applicant is unable to afford any other legal
representatives. She does deserve much better than the advice and
assistance that she has received from the Wits Law Clinic to date.
[82] I am also satisfied that the Applicant has as a bare minimum shown that she
has some prospects of success and that she would succeed with the unfair
dismissal dispute if the facts which she pleaded were accepted at trial , and
that the granting of condonation would not materially prejudice the
Respondent or prejudice the Respondent more than the Applicant would be
prejudiced if condonation was not granted (i.e., the balance of convenience
favours the Applicant).
favours the Applicant).
[83] In all the circumstances, I am satisfied that the Applicant has established that
it is in the interests of justice that condonation be granted, that there is good
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cause for the granting of condonation, and that a proper case has been made
out for condonation.
Costs
[84] In terms of the provisions of section 162(1) of the LRA, which regulates orders
for costs in this Court, I have a wide discretion when it comes to the issue of
costs, having regard to the requirements of the law and fairness after taking
into account all of the relevant facts and circumstances.
[85] In exercising this judicial discretion, the Constitutional Court in Long v South
African Breweries (Pty) Ltd and Others 17 reaffirmed the principle set in Zungu
v Premier of the Province of Kwa -Zulu Natal and Others18 with regard to costs
in employment disputes and stated that ‘ when making an adverse costs order
in a labour matter, a presiding officer is required to consider the principle of
fairness and have due regard to the conduct of the parties.’
[86] Taking account of all the relevant facts and circumstances and having regard
for the requirements of the law and fairness, I do not consider it appropriate to
make a cost order, and I exercise my discretion as to costs accordingly.
Order
1. The application for condonation is granted.
2. There is no order as to costs.
_____________________
Mendel Sass
Acting Judge of the Labour Court of South Africa
17 (2019) 40 ILJ 965 (CC) at para 30.
18 (2018) 39 ILJ 523 (CC) at para 25.
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Appearances:
For the Applicant: Advocate P Sinthmule (instructed by the Wits Law Clinic)
For the Respondent: Attorney A Dippenaar (Kirchmanns Inc.)