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Thembakazi Ntangazana v Member of Executive Council for The Department of Education, Eastern Cape (390/2023) [2025] ZASCA 160 (23 October 2025)

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Administrative Law
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Brief Summary

Reconsideration — Application for leave to appeal — Condonation for delay — Inadequate explanation for delay outweighed by good prospects of success — Exceptional circumstances warranting reconsideration of previous dismissal — Matter remitted to the High Court for determination. The applicant, Ms. Ntangazana, sought to appeal a high court ruling that upheld a special plea regarding jurisdiction over her claim for loss of income following an irregular appointment process. After an initial refusal of leave to appeal, the Acting President of the Supreme Court of Appeal referred the matter for reconsideration under s 17(2)(f) of the Superior Courts Act. The court found that while the applicant's explanation for the delay was insufficient, the presence of conflicting judgments constituted an exceptional circumstance justifying the reconsideration of the application for leave to appeal.

Comprehensive Summary

Case Note


Thembakazi Ntangazana v Member of Executive Council for the Department of Education, Eastern Cape (390/2023) [2025] ZASCA 160 (23 October 2025)


Reportability


The judgment is expressly marked “Not Reportable”. Nonetheless, the decision is of practical and doctrinal significance because it elucidates the scope and operation of section 17(2)(f) of the Superior Courts Act 10 of 2013, including its remedial purpose and its interaction with condonation principles when a reconsideration referral lapses through delay. The court explains that reconsideration under section 17(2)(f) “keeps the door of justice ajar” to prevent injustice where errors, mistakes or overlooked considerations may have led to an incorrect refusal of leave to appeal.


The case is also significant for reaffirming the balancing exercise in condonation applications where an inadequate explanation for delay may be trumped by strong prospects of success, and conversely, where weak prospects may undermine even a full explanation. This calibration is applied in the specific context of a lapsed section 17(2)(f) reconsideration, a relatively discrete procedural posture that frequently arises in appellate practice.


Further, the judgment flags the presence of possibly conflicting High Court rulings on closely related procedural and jurisdictional issues as an “exceptional circumstance” warranting reconsideration. Even though the statutory text governing section 17(2)(f) was amended in April 2024, the court’s articulation of the provision’s function, and its recognition of conflict and the risk of injustice as triggers for intervention, remains instructive for both the pre- and post-amendment tests.


Cases Cited


Liesching and Others v S [2016] ZACC 41; 2017 (2) SACR 193 (CC); 2017 (4) BCLR 454 (CC) para 54.


The Lion Match Company (Pty) Ltd v Commissioner, South African Revenue Service [2025] ZASCA 112.


Bidvest Protea Coin Security (Pty) Ltd v Mabena [2025] ZASCA 23; 2025 (3) SA 362 (SCA).


Motsoeneng v South African Broadcasting Corporation Soc Ltd and Others [2024] ZASCA 80; 2025 (4) SA 122 (SCA).


Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] ZACC 48; 2014 (5) SA 138 (CC); [2013] 2 All SA 251 (SCA) para 11.


National Director of Public Prosecutions v Victor NO and Others [2025] ZASCA 31; 2025 (1) SACR 561 (SCA) paras 8 and 15.


Baloyi v Public Protector and Others [2020] ZACC 27; 2022 (3) SA 321 (CC); 2021 (2) BCLR 101 (CC); [2021] 4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC) paras 32, 48–50.


National Prosecuting Authority and Others v Public Servants Association and Others [2021] ZASCA 160; 2022 (3) SA 409 (SCA); [2022] 2 BLLR 174 (SCA); [2022] 1 All SA 353 (SCA); (2022) 43 ILJ 350 (SCA).


Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA 62 (SCA); [2009] 8 BLLR 721 (SCA); [2009] 4 All SA 146 (SCA); (2009) 30 ILJ 1539 (SCA) para 28.


Legislation Cited


Superior Courts Act 10 of 2013, section 17(2)(f) (pre- and post-3 April 2024 text).


Labour Relations Act 66 of 1995, including section 157(1) on exclusive jurisdiction of the Labour Court.


Basic Conditions of Employment Act 75 of 1997.


Rules of Court Cited


No specific Rules of Court were cited by number. The court referred generally to compliance with the Supreme Court of Appeal’s procedural requirements for reconsideration referrals, including the filing of multiple copies of the leave application and the record within specified time periods set out in the referral order.


HEADNOTE


Summary


This was a reconsideration under section 17(2)(f) of the Superior Courts Act of a two-judge refusal of leave to appeal. After the Acting President referred the petition decision for reconsideration, the applicant failed to comply with the filing timelines in the referral order, causing the reconsideration to lapse. The applicant then sought condonation and reinstatement, and, if reinstated, reconsideration and variation of the original refusal of leave.


The applicant’s underlying claim sought damages for loss of income following an irregular appointment process at a public school. A special plea of lack of jurisdiction succeeded in the High Court, which refused leave. A two-judge panel of the Supreme Court of Appeal refused leave. The Acting President thereafter issued a section 17(2)(f) referral. The principal questions concerned the adequacy of the applicant’s explanation for delay, the strength of her prospects of success, and whether exceptional circumstances justified reconsideration of the refusal of leave.


The Supreme Court of Appeal found the delay explanation wanting but held that the applicant had strong prospects of success, particularly because the High Court’s jurisdictional ruling appeared to have overlooked controlling Constitutional Court and Supreme Court of Appeal authority on the relationship between the Labour Court and High Court. The court also noted potentially conflicting High Court rulings on overlapping issues as constituting an exceptional circumstance. Condonation and reinstatement were granted. The refusal of leave was varied and leave to appeal was granted to the Full Court of the Eastern Cape Division, Mthatha, with costs of condonation and reinstatement to be borne by the applicant.


Key Issues


The first issue was whether the applicant had furnished a reasonable and full explanation for her non-compliance with the time limits set in the section 17(2)(f) referral order. The applicant attributed the nine-month lapse to reliance on a correspondent attorney and the absence of communication from the Registrar, but the court found the explanation terse and unsupported by detail or corroborating affidavits.


The second issue was whether, notwithstanding an inadequate explanation for delay, the applicant demonstrated sufficiently strong prospects of success on appeal to justify condonation and reinstatement. This required an assessment of the High Court’s jurisdictional ruling against the Constitutional Court’s decision in Baloyi v Public Protector and the Supreme Court of Appeal’s decision in Makhanya v University of Zululand, both of which recognise that the High Court may adjudicate claims framed in contract or delict even where similar facts could sustain a Labour Relations Act claim.


The third issue concerned whether the matter presented the kind of “exceptional circumstances” (applicable at the time of referral) that warranted reconsideration of the petition refusal under section 17(2)(f). The court identified the presence of potentially conflicting High Court judgments on intersecting procedural and jurisdictional questions as an exceptional circumstance justifying intervention to prevent an injustice.


Held


The court held that the applicant’s explanation for the nine-month delay was inadequate. There were no dates, no description of the mode or frequency of follow-ups, and no affidavit from the correspondent attorney accounting for the delay. Standing alone, this would ordinarily defeat condonation and reinstatement.


However, the court held that the applicant had strong prospects of success, because the jurisdictional dismissal appeared to disregard binding authority establishing that the High Court’s jurisdiction depends on the nature of the claim as pleaded, and that litigants may frame claims in contract or delict that fall outside the Labour Court’s exclusive domain. The apparent tension between the High Court’s exception and special plea rulings — both addressing substantially the same jurisdictional terrain — further accentuated the prospects of success.


The court further held that the possibility of conflicting judgments by the same division on closely intertwined issues constituted an exceptional circumstance under the (then applicable) section 17(2)(f) standard, warranting reconsideration and variation of the petition refusal to prevent an injustice. Condonation was granted, the reconsideration was reinstated, and leave to appeal to the Full Court of the Eastern Cape Division, Mthatha, was granted, with costs of the condonation and reinstatement applications awarded against the applicant and costs in the appeal to follow the appeal outcome.


THE FACTS


The dispute traces back to a 13 May 2016 advertisement by the Eastern Cape Department of Education for an administration clerk at Upper Tabase Junior Secondary School. At the time, the applicant, Ms Thembakazi Ntangazana, already served in the role under the school governing body’s employ. She was not initially appointed despite her experience, and she challenged the process, exposing irregularities that ultimately led to reversal of the appointment and her placement in the position.


Following her appointment, the applicant instituted action for damages for loss of income, alleging that she was the only suitable candidate and, absent the irregularities, would have earned a salary from November 2016. The Department defended, first by exception to the particulars of claim, which was dismissed by Beneke AJ, and then by a special plea to the High Court’s jurisdiction. Majiki J upheld the special plea and dismissed the claim on 28 June 2022, holding, in substance, that the matter fell within the Labour Court’s exclusive jurisdiction.


The High Court refused leave to appeal on 15 November 2022. A two-judge panel of the Supreme Court of Appeal then refused leave on 30 March 2023. On 7 August 2023, the Acting President of the Supreme Court of Appeal referred the petition decision for reconsideration under section 17(2)(f), with directions to file the petition papers and record within set timelines. The applicant did not comply. Almost nine months later, having discovered the referral order and its directives, the applicant sought condonation and reinstatement of the reconsideration, contending that the delay was attributable to reliance on the correspondent attorney and the absence of communications from the Registrar.


THE ISSUES


A central procedural issue was whether the applicant satisfied the requirements for condonation and reinstatement after the reconsideration referral had lapsed. This implicated the familiar twofold inquiry into the explanation for delay and the prospects of success, and how courts balance these factors when they pull in opposite directions.


A substantive threshold issue was whether the applicant’s prospects of success on appeal were sufficiently strong to outweigh the inadequacy of the delay explanation. That in turn hinged on whether the High Court’s jurisdictional dismissal was sustainable in light of controlling jurisprudence on the High Court–Labour Court interface, particularly the principles articulated in Baloyi and Makhanya concerning the plaintiff’s election to sue in contract or delict, and the limits of the Labour Court’s exclusive jurisdiction.


A further issue, specific to the section 17(2)(f) framework applicable at the time of referral, was whether there were “exceptional circumstances” justifying reconsideration of the two-judge refusal of leave to appeal. The court had to determine whether the presence of potentially conflicting High Court judgments on intertwined procedural and jurisdictional points raised a risk of injustice that warranted reopening the petition outcome.


ANALYSIS


On condonation and reinstatement, the court rehearsed the established principles that a litigant must provide a reasonable, full, and candid explanation covering the entire period of delay, and that the court must consider the strength of the merits in tandem with the explanation. Citing current authority, the court reaffirmed that weak prospects of success can defeat condonation despite a full explanation, whereas strong prospects can, in appropriate cases, excuse an inadequate explanation. The applicant’s explanation fell short: it lacked dates, modes of communication, and corroborating evidence from the correspondent attorney to justify the nine-month lapse in complying with the referral order. Standing alone, such a deficiency would not justify reinstatement.


The court then emphasised that the prospects of success were strong enough to shift the balance. The High Court’s reliance on a jurisdictional special plea to dismiss the action seemingly overlooked the Constitutional Court’s decision in Baloyi v Public Protector and Others, which clarifies that the High Court’s jurisdiction turns on the pleaded cause of action and that litigants may elect to frame claims in contract or delict rather than invoking Labour Relations Act remedies. It also appears to have disregarded this court’s authoritative guidance in Makhanya v University of Zululand that if a claim, as formulated, is enforceable in a court, the plaintiff is entitled to proceed there; issues of duplication or suitability do not negate jurisdiction. Those decisions underscore that the Labour Court’s exclusive jurisdiction under section 157(1) of the Labour Relations Act does not automatically oust the High Court where the pleaded claim genuinely sounds in contract or delict.


In addition, the court identified a further concern: there were two High Court judgments by different judges of the same division addressing closely related aspects of the case — Beneke AJ’s dismissal of the exception and Majiki J’s upholding of the special plea of lack of jurisdiction — which appeared to apply the law differently, potentially generating conflicting outcomes on the same issue. Such conflict, left unaddressed, could perpetuate inconsistency and injustice. Within the section 17(2)(f) framework governing the referral at the time (i.e., “exceptional circumstances”), the court held that potential intra-division conflict on jurisdiction and pleading issues qualified as an exceptional circumstance warranting reconsideration to avert a grave failure of justice.


Having weighed the poor explanation for delay against the strong prospects of success and the presence of exceptional circumstances, the court concluded that the interests of justice required condonation and reinstatement of the reconsideration referral. Proceeding to the merits of the reconsideration, the court varied the original petition outcome by granting leave to appeal to the Full Court of the Eastern Cape Division, Mthatha, thereby ensuring that the underlying jurisdictional questions and possible conflict between High Court judgments could be fully ventilated and resolved.


REMEDY


The court granted condonation for non-compliance with the referral order’s timelines and reinstated the section 17(2)(f) reconsideration. The court did so notwithstanding the applicant’s inadequate explanation, because strong prospects of success and the risk of injustice arising from potentially conflicting High Court judgments tipped the scales in favour of intervention.


On reconsideration, the court varied the earlier two-judge refusal of leave to appeal by granting leave to the Full Court of the Eastern Cape Division, Mthatha. In doing so, the court ensured that the jurisdictional issues, including the proper application of Baloyi and Makhanya to the pleaded cause of action, would receive plenary appellate consideration in the division where the conflict had arisen.


As to costs, the court ordered the applicant to pay the costs occasioned by the condonation and reinstatement applications, including costs of counsel where employed, because the applicant sought an indulgence. The request by the respondent for the costs of two counsel was declined as unwarranted in the circumstances. The costs of the appeal were ordered to be costs in the appeal.


LEGAL PRINCIPLES


The judgment consolidates the two-pronged test for condonation and reinstatement. A litigant must provide a full, reasonable explanation for the entire delay period and demonstrate prospects of success on the merits. The court reiterated the nuanced interplay between these factors: strong merits may excuse an inadequate explanation, while poor merits may defeat condonation even where the explanation is satisfactory. This calibrated approach, grounded in recent appellate authority, is reaffirmed in the specific context of a lapsed section 17(2)(f) reconsideration.


On jurisdiction, the judgment reasserts that the High Court’s jurisdiction is determined by the pleaded cause of action. Where a plaintiff frames a claim in contract or delict, the High Court is not ousted by the Labour Court’s exclusive jurisdiction under section 157(1) of the Labour Relations Act merely because the same facts could also sustain a labour dispute. Baloyi v Public Protector and Makhanya v University of Zululand are central: they affirm a litigant’s election to plead a non-Labour Relations Act cause of action and proceed in the High Court, subject to the claim being good in law.


Finally, the decision clarifies the remedial purpose of section 17(2)(f) of the Superior Courts Act. Even under the pre-amendment “exceptional circumstances” threshold applicable to this referral, the court recognised that potential conflict between judgments on overlapping issues within the same division may constitute such circumstances, justifying reconsideration to avert injustice. The court’s articulation of section 17(2)(f) as a mechanism that “keeps the door of justice ajar” resonates with both the pre- and post-amendment formulations, underscoring its role as a narrow but vital corrective jurisdiction to maintain the integrity of appellate decision-making.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 390/2023

In the matter between:
THEMBAKAZI NTANGAZANA APPLICANT
and
MEMBER OF THE EXECUTIVE COUNCIL
FOR THE DEPARTMENT OF EDUCATION,
EASTERN CAPE RESPONDENT

Neutral citation: Thembakazi Ntangazana v Member of Executive Council for
The Department of Education, Eastern Cape (390/2023) [2025] ZASCA 160
(23 October 2025)
Coram: MOTHLE, HUGHES, KGOELE and BAARTMAN JJA and CHILI
AJJA
Heard: 03 September 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ representatives by email, published on the Supreme Court of Appeal
website, and released to SAFLII. The date and time for hand -down are deemed
to be 11h00 on 23 October 2025.
Summary: Lapsed reconsideration application in terms of s 17(2)(f) of the
Superior Courts Act 10 of 2013 – inadequate delay explanation trumped by good

2

prospects of success – conflicting judgments an exceptional circumstance –
application for leave to appeal reconsidered – matter remitted to the high court.

3


ORDER

On application for reconsideration: referred by Deputy President Petse in terms
of s 17(2)(f) of the Superior Courts Act 10 of 2013:
1 The application for condonation is granted, and the referral for
reconsideration is reinstated. The applicant is to pay the costs occasioned
by the condonation and reinstatement applications , including the c osts of
counsel where so employed.
2 The order dismissing the application for leave to appeal is reconsidered and
varied as follows:
‘Leave to appeal is granted to the full court of the Eastern Cape Division
of the High Court, Mthatha. Costs to be costs in the appeal.’

JUDGMENT

Baartman JA (Mothle, Hughes and Kgoele JJA and Chili AJJA concurring)

[1] The Eastern Cape Division of the High Court, Mthatha (the high court) ,
per Majiki J, upheld a special plea against the high court’s jurisdiction to entertain
Ms Ntangazana’s (the applicant) claim. The high court refused leave to appeal.
An unsuccessful application for leave to appeal to this Court followed. On
7 August 2023 the Acting President of this Court referred the decision dismissing
the application for leave to appeal for reconsideration and, if necessary, variation.
The matter serves before us in terms of s 17(2)(f) of the Superior Courts Act.1


1 The Superior Courts Act 10 of 2013.

4

[2] The facts that gave rise to the dispute are common cause. On 13 May 2016,
the MEC for the Department of Education, Eastern Cape (the respondent)
advertised a vacancy for an administration clerk at Upper Tabase Junior
Secondary School (the school). The applicant in this case was one of several
applicants for the vacancy. At the time the respondent advertised the vacancy, the
applicant had been employed by the school’s governing body in that position. She
was unsuccessful, but initiated a dispute that disclosed irregularities in the
process. The irregular appointment was reversed and the applicant was appointed.
Thereafter, she sued for loss of income on the basis that she was the only suitable
candidate and contended that, but for the irregularity , she would have earned a
salary from November 2016.

[3] The respondent defended the action and raised an exception to the
particulars of claim . Beneke AJ dismissed the exception on 22 October 2019 .
Thereafter, the respondent raised a special plea to the high court’s jurisdiction.
On 28 June 2022, Majiki J referred to the finding made by Beneke AJ, in the
judgment on the exception, to uphold the special plea of lack of jurisdiction and
accordingly dismissed the applicant’s claim. The applicant’s application for leave
to appeal to the high court was dismissed on 15 November 2022.

[4] In this Court the application for leave to appeal was refused by two judges,
on the basis that there w as ‘no reasonable prospect of success in an appeal and
there is no other compelling reason why an appeal should be heard.’ On
7 August 2023, when the Acting President of this Court referred this matter to be
heard by this Court in terms of s 17(2)(f) of the Superior Courts Act, the section
provided as follows:
‘The decision of the majority of the judges considering an application referred to in paragraph
(b), or the decision of the court, as the case may be, to grant or refuse the application shall be

final: Provided that the Pres ident of the Supreme Court of Appeal may in exceptional

5

circumstances, whether of his or her own accord or on application filed within one month of
the decision, refer the decision to the court for reconsideration and, if necessary, variation.’

[5] The section was amended with effect from 3 April 2024 by the deletion of
the phrase ‘in exceptional circumstances’ and the substitution thereof with the
phrase ‘in circumstances where a grave failure of justice would otherwise result,
or the administration of justice may be brought into disrepute’ . Section 17(2)(f)
‘keeps the door of justice ajar in order to cure erro rs or mistakes and for the
consideration of a circumstance, which, if it were known at the time of the
consideration of the petition, might have yielded a different outcome. It is
therefore a means of preventing an injustice. ’2 A mere repetition of arguments
already rejected will not avail an applicant ; instead, the section seeks to address
the situation where injustice would result if the matter is not reconsidered.3

[6] It is in issue whether there are factors present, other than those that have
been dealt with in the high court and on petition by two judges of this Court ,
which would cause injustice if the order dismissing the application for leave to
appeal is not reconsidered.4 Before embarking on that enquir y, the status of the
appeal needs to be determined. After the Acting President had referred the
application for reconsideration, the applicant’s attorneys d elayed, for almost a
year, in implementing the directives in the referral order . The application had
lapsed, therefore the applicant sought condonation and reinstatement of the
appeal as follows:
‘1. That the application for reconsideration of the order…refusing leave to appeal and the
appeal be re-instated and that the applicant’s non -compliance with the timelines fixed by this

2 Liesching and Others v S [2016] ZACC 41; 2017 (2) SACR (CC); 2017 (4) BCLR 454 (CC) para 54.

3 The Lion Match Company (Pty) Ltd v Commissioner, South African Revenue Service [2025] ZASCA 112.
4 See Bidvest Protea Coin Security (Pty) Ltd v Mabena [2025] ZASCA 23; 2025 (3) SA 362 (SCA) following
Motsoeneng v South African Broadcasting Corporation Soc Ltd and Others [2024] ZASCA 80; 2025 (4) SA 122
(SCA).

6

Court in the order dated 7 August 2023 be condoned. Granting the costs of this application
against the applicant on unopposed basis.’

[7] The requirements for condonation and reinstatement are well established.5
These include a reasonable and full explanation for the entire period of the delay.
The prospects of success in the appeal are also relevant . Recently,6 this Court
confirmed that weak prospects of success may trump a full and satisfactory
explanation for the delay , while good prospects of success may , in appropriate
circumstances, excuse an inadequate explanation for the delay.

[8] The applicant proffered the following explanation for the delay: in
December 2022, the applicant sought leave to appeal from the high court against
its dismissal of her claim by upholding the special plea of jurisdiction. The
application for leave to appeal was refused by the high court and on
30 March 2023, this Court dismissed the application for leave to appeal against
that refusal. Thereafter, the applicant approached the President of this Court in
terms of s 17(2) (f) to have the dismissal of her application for leave to appeal
reconsidered. The applicant had, in compliance with the rules of this Court ,
appointed a correspondent attorney and relied on the latter to give feedback on
the progress of the application for reconsideration.

[9] From 7 August 2023, when the Acting President referred this matter for
reconsideration to May 2024, the correspondent attorney intermittently advised
that no communication had been received from the registrar of this Court , in
respect of th e application for reconsideration. Therefore, on 30 May 2024, the
applicant’s attorney contacted the registrar of this Court to complain about the

5 Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd & others [2013]
ZACC 48; 2014 (5) SA 138 (CC); [2013] 2 All SA 251 (SCA) para 11.

ZACC 48; 2014 (5) SA 138 (CC); [2013] 2 All SA 251 (SCA) para 11.
6 National Director of Public Prosecutions v Victor NO and others [2025] ZASCA 31; 2025 (1) SACR 561 (SCA)
paras 8 and 15.

7

delay. The registrar advised that the order had already been granted on
7 August 2023, nine months earlier (the reconsideration order).

[10] Remarkably, the applicant alleges that on the same day he contacted the
Registrar of this Court, he received a copy of the reconsideration order from the
correspondent attorney. It was apparent from the order that the Acting President
had on 7 August 2023 referred the matter for reconsideration in terms of s 17(2)(f)
of the Superior Courts Act. That order directed the applicant to , among others,
file six copies of the initial application for leave to appeal within one month of
the reconsideration order and file the record within three months of the
reconsideration order. None of the prescribed periods were complied with as the
applicant only obtained the reconsideration order nine months after it was
granted.

[11] The applicant’s attorney lays the blame for the delay in obtaining the order
at the door of his correspondent attorney, whom he had contacted almost weekly
for feedback. However, the applicant’s attorney indicate d neither the dates nor
the method of this communication with his correspondent attorney. Moreover, no
affidavit from the correspondent attorney has been filed to explain when the latter
received the order. Instead, the applicant’s attorney excused his own
complacency by alleging that he thought the delay at this Court might have been
due to a transition, as the previous President of the Court had been elevated to the
Constitutional Court. The attorney claims diligence in that he served the
application for condonation and reinstatement on the respondent within one day
of receipt of the reconsideration order and three days later, on 7 June 2024,
delivered six copies of the application to his correspondent for filing at this Court.

[12] Counsel for the applicant submitted that a reasonable explanation for the
nine-month delay had been offered and that the prospects of success were good.

8

The respondent’s counsel, correctly in my view, submitted that the delay was
inordinate and not fully explained. It was insufficient to merely allege that the
applicant’s attorney had made regular contact with his correspondent attorney
without the dates on which he had contacted his correspondent attorney, or how
the contact had been made. Compounding the inadequacy of the explanation, is
the absence of an affidavit from the correspondent attorney explaining what had
happened to the order in nine months.

[13] The applicant has not provided a full and frank explanation for the delay.
In National Director of Public Prosecutions v Victor N.O and Others,7 this Court
dealt with a situation where leave to appeal had been granted on 3 July 2023; the
appellant should have filed the record on 3 November 2023 but instead, only filed
on 20 March 2024. The explanation was unsatisfactory. In refusing to reinstate
the appeal, this Court said that ‘[t]he NDPP, therefore, has not established any
prospects of success, let alone strong prospects of success in the appeal, that
might otherwise have trumped its unsatisfactory explanation for the delay’8.

[14] I have found the explanation for the inordinate delay lacking. It follows
that the appeal can only be reinstated if the applicant has strong prospects of
success on appeal. The applicant alleges good prospects of success in the appeal.
I turn to that enquiry. As indicated above, Majiki J dismissed the application for
leave to appeal with reference to the Beneke AJ judgment. The latter judgment is
not the subject of an appeal in this application. The issue is whether reliance on
the Beneke AJ judgment in the circumstances of this matter was correct.

[15] The applicant approached the high court with a claim for loss of income. It
was in issue whether the claim was one based on the Labour Relations Act 9

7 National Director of Public Prosecutions v Victor N.O and Others fn 6 above.
8 Ibid para 15.
9 Labour Relations Act 66 of 1995.

9

(LRA), on contract, or on delict. It appears that the claim was dismissed without
reference to Baloyi v Public Protector,10 where the Constitutional Court held that
the high court’s jurisdiction depended on whether the claim was such that the
LRA or the Basic Conditions of Employment Act11 (BCEA) conferred exclusive
jurisdiction on the Labour Court. The Constitutional Court found that a litigant
with a claim in terms of the LRA may prefer to base his/her claim on breach of
contract instead of pursuing remedies in terms of the LRA. It appears that this
decision was not brought to the attention of the high court, despite the allegation
that the applicant’s pleaded case did not fall within the exclusive jurisdiction of
the Labour Court in terms of s 157(1) of the LRA. The high court appears not to
have considered that in Makhanyana v University of Zululan d, this Court held
that:12
‘Some surprise was expressed in Chirwa at the notion that a plaintiff might formulate his or
her claim in different ways and thereby bring it before a forum of his or her choice but that
surprise seems to me to be misplaced. A plaintiff might indeed formulate a claim in whatever
way he or she chooses - though it might end up that the claim is bad. But if a claim, as
formulated by the claimant, is enforceable in a particular court, then the plaintiff is entitled to
bring it before that court. And if there are two courts before which it might be brought then that
should not evoke surprise, because that is the nature of concurrent jurisdiction. It might be that
a claim, as formulated, is a bad claim, and it will be dismissed for that reason, but that is another
matter.’ (Footnotes omitted)

[16] It is apparent, from the limited record before this Court that the applicant
holds good prospects of success in the appeal being considered . In the
circumstances of this matter, the thr eshold for reinstatement of the appeal has
been met. It follows that condonation should be granted. I turn to consider

been met. It follows that condonation should be granted. I turn to consider

10 Baloyi v Public Protector and Others [2020] ZACC 27; 2022 (3) SA 321 (CC) ; 2021 (2) BCLR 101 (CC);
[2021] 4 BLLR 325 (CC); (2021) 42 ILJ 961 (CC); paras 32, 48 -50, as referred to by this Court in National
Prosecuting Authority and Others v Public Servants Association and Others [2021] ZASCA 160; 2022 (3) SA
409 (SCA); [2022] 2 BLLR 174 (SCA); [2022] 1 All SA 353 (SCA); (2022) 43 ILJ 350 (SCA).
11 Basic Conditions of Employment Act 75 of 1997.
12 See Makhanya v University of Zululand [2009] ZASCA 69; 2010 (1) SA 62 (SCA); [2009] 8 BLLR 721 (SCA);
[2009] 4 All SA 146 (SCA); (2009) 30 ILJ 1539 (SCA) para 28.

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whether there are exceptional circumstances to reconsider the order dismissing
the application for leave to appeal.

[17] As indicated above, two judgments, that of Majiki J on the special plea on
jurisdiction and that of Beneke AJ on the exception raised, are at issue, but only
one is before this Court. It appears, from the limited information before us, that
the two judgments are possibly conflicting, dealing with the same issues and
applying the law differently. That presents an exceptional circumstance for this
Court to reconsider the refusal of the application for leave to appeal .13 The
applicant has good prospects of success for the appeal to be heard, in respect of
the two judgments, one of which is not before this Court. In the circumstances of
this matter, I conclude that it is in the interest of justice to grant leave to appeal
to the full bench of the high court.

[18] The applicant sought an indulgence and should bear the costs of the
condonation and reinstatement application, as her counsel correctly concede d.
The respondent requested the costs of two counsel. Despite the facts in this matter
reading like a kafkaesque14 story and the inexplicable waste of scarce judicial
resources, the matter does not justify the costs of two counsel.

[19] The following order is made:
1 The application for condonation is granted, and the referral for
reconsideration is reinstated. The applicant is to pay the costs occasioned
by the condonation and reinstatement applications, including the costs of
counsel where so employed.
2 The order dismissing the application for leave to appeal is
reconsidered and varied as follows:

13 Makhanyana v University of Zululand ft 12 above this Court held para 29.’Jurisdictional challenges will be
raised either by exception or by a special plea, depending on the grounds upon which the challenge arises…’
14 Kafkaesque is a situation that is almost surreal, typical of a Franz Kafka novel.

11

‘Leave to appeal is granted to the f ull court of the Eastern Cape Division
of the High Court, Mthatha. Costs to be costs in the appeal.’

___________________

E BAARTMAN
JUDGE OF APPEAL

12


Appearances

For the appellant: Z Z Matebese SC
Instructed by: Caps Pangwa and Associates, Mthatha
Bokwa Attorneys Incorporated,
Bloemfontein

For the respondent: F Pretorius and L Mati
Instructed by: Changfoot, Van Breda Incorporated
Symington de Kok Attorneys,
Bloemfontein.

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