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2025
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[2025] ZALCPE 24
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Yeye v SP Metal Forgings Uitenhage and Others (PR96/23) [2025] ZALCPE 24 (22 October 2025)
IN
THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not
Reportable
CASE
NO: PR96/23
In the matter between:
KALIPILE
YEYE
Applicant
And
SP METAL FORGINGS
UITENHAGE
First Respondent
MOTOR INDUSTRY
BARGAINING COUNCIL
DISPUTE RESOLUTION
CENTRE
Second Respondent
URSULA
BULBRING
Third Respondent
Heard:
23 July 2025
Delivered:
This judgment was handed down electronically by circulation to the
Applicant’s and First Respondent’s
Legal Representatives
by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing -
down is deemed to be 15h00 on
22 October 2025.
JUDGMENT
LALLIE J
[1]
The applicant was employed by the first respondent as a finishing
inspector. He was dismissed for misconduct and referred
a unfair
dismissal dispute to the second respondent (the bargaining council).
The dispute was not resolved at the conciliation
stage of its
resolution and a certificate to that effect was issued on 28
September 2022. The applicant referred the dispute to
arbitration on
1 February 2023. As the referral was made later than the 90 day
period prescribed in section 136(b) of the Labour
Relations Act
[1]
(the LRA), the applicant filed an application for condonation. The
condonation application was determined by the third respondent
who
will be referred to the arbitrator in this judgment. On 7 March 2023
the arbitrator issued a ruling dismissing the condonation
application. On 23 May 2023 the applicant launched an applicant to
have the condonation ruling reviewed and set aside. He delayed
in
filing the record of the arbitration proceedings leading to the
review application being deemed withdrawn as envisaged in clause
11.2.2 of the Practice Manual of the Labour Court of South Africa
(the Practice Manual) one of the documents which regulated the
conduct of proceedings at the Labour Court at the time. He
consequently filed the application at hand for the reinstatement of
the review application. The application is opposed by the first
respondent.
[2]
The reinstatement application is essentially a condonation
application. The relevant test for its determination is expressed
as
follows in
Grootboom
v NPA
[2]
:
“
[22]
I have read the judgment by my colleague Zondo J. I agree with
him that, based on
Brummer
and
Van Wyk
, the 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.”
[3] The applicant
submitted that the extent of the delay in filing the record is 31
days as his erstwhile attorneys received
the notification of the
availability of the record from the registrar on 25 May 2023. The 60
day period within which the record
should have been filed expired on
17 August 2023. The applicant filed this application on 29 September
2023, 31 days after it was
due. The first respondent submitted that
the extent of the delay is 22 months as the applicant filed the
record on 24 June 2025.
Both parties relied on authorities in support
of their versions of calculating the extent of the delay. Each case
is decided on
its merits. I accept the applicant’s version that
the period of lateness should be calculated from the end of the 60
day
period prescribed in clause 11.2.2 of the Practice Manual of the
date of the filing of this application. When the 60 day expired
the
review applicant was deemed withdrawn. In the absence of a review
application there was no reason for filing pleadings including
the
record in the deemed withdraw review application. The obligation to
file pleading arises after the reinstatement application
has been
granted and the review application revived. The extent of the delay
is therefore 31 days and not as excessive as the first
respondent
alleged.
[4] The applicant’s
explanation for the delay is that the notification of the
availability of the record was sent to
the attorney who acted on his
behalf at the time. Owing to the refusal of the applicant’s
insurance policy to continue paying
the attorney’s fees she
withdrew and filed a notice to that effect on 13 September 2023. The
applicant applied for assistance
from the Legal Aid Board on 8
September 2023. His application was successful and the application at
hand was filed on 28 September
2023. The first respondent submitted
that the applicant’s explanation was vague and failed to cover
the entire period of
lateness. It was submitted that the explanation
should be found insufficient and unreasonable.
[5] The
truthfulness of the applicant’s explanation was not attacked.
The essence of the applicant’s explanation
is that after his
dismissal he could not afford to enlist the services of an attorney.
It would appear that the insurance policy
he had also stopped paying
the fees of his attorney and he sought assistance from the Legal Aid
board. I find the explanation reasonable.
The unexplained periods of
lateness are short. They constitute imperfection rather than
unreasonableness.
[6] I accept the
first respondent’s contention that it will be prejudiced by the
delay. However, the applicant will
be more prejudiced than the first
respondent should this application be refused because he will lose
his right to have the review
application heard. The prejudice the
first respondent stands to suffer may be addressed by an appropriate
order, a benefit the
applicant cannot enjoy should his application be
refused.
[7] The applicant
submitted that he has good prospects of success on review. His
submission that the arbitrator misconstrued
the extent of the
lateness of his referral is incorrect. The first respondent correctly
pointed out that the arbitrator correctly
stated that the referral
was late by 36 and not 126 days. The applicant, however, submitted
correctly that the arbitrator set the
bar too high by requiring him
to prove on a balance of probabilities that a valid plausible reason
existed for the delay. The arbitrator’s
view that the reason
for the delay must be compelling and out of the ordinary and
expecting the applicant to make out a
prima facie
case in a
condonation application form part of the unreasonably high standard
the arbitrator used in determining the condonation
application. If
the applicant can prove on review that the arbitrator used a more
stringent test his application may succeed. He
therefore proved that
he has reasonable prospects of success.
[8] Notwithstanding
the first respondent’s vehement opposition the applicant
succeeded in proving that the interest
of justice justify the
reinstatement of his review application. The applicant cannot be
denied of the right to have his review
application heard because of
the financial position he finds himself in after his dismissal.
Access to justice cannot be a preserve
of those who can afford legal
representation. The delay is not excessive and the applicant proved
reasonable prospects of success.
The first respondent’s attempt
to rely on the applicant’s delay in bringing the review
application cannot succeed.
The effects of that delay will be
relevant in a different application.
[9] I could find no
reason in fairness for a costs order against the first respondent.
[10] In the
premises, the following order is made:
1. The application
for the reinstalment of the review application is granted.
2. There is no
order as to costs.
MZN Lallie
Judge
of the Labour Court of South Africa
Appearance
For the
Applicant:
Ms van Staden of the Justice
Centre
For the First
Respondent: Advocate S Grobler
Instructed
by
Van Zyl’s Inc
[1]
Act
66 of 1995, as amended.
[2]
[2014]
1 BLLR 1
(CC) at para [22].