THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1567/2022
In the matter between:
LEBOGANG MASEMOLA
Applicant
and
NECSA (Nuclear Energy South Africa) First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION Second Respondent
COMMISSIONER ROBERT SKHOSANA Third Respondent
Heard: 26 June 2025
Delivered: 27 October 2025
Summary: Condonation – Late referral – internal appeal noted – attorney
blamed for the delay – explanation reasonable. Commissioner
dismissed condonation based on excessive delay. Arbitrator
misdirected and mis -appreciated the facts before him – finding of
excessive delay not aligned with the facts including date of dismissal.
Employer’s failure to set down the internal appeal by elevating form
over substance. Failure to consider interest of justice including
prejudice further misdirection. Condonation ruling reviewed and set
aside.
2
JUDGMENT
MOSIKILI, AJ
Introduction
[1] The applicant, Mr Lebogang Masemola seeks, in terms of section 145 of the
Labour Relations Act 1 (“the LRA”) to review, correct and/set aside the ruling of
the Commission for Conciliation, Mediation & Arbitration (“ CCMA”) (per Third
Respondent) dated 14 April 2022 under case number GATW3123 – 22. The
third respondent refused the applicant’s application for condonation of the late
referral to the CCMA. The applicant also seeks an order condoning the late
filing of this review application.
[2] It is apt to mention that during the hearing of the matter, Mr. de Koker on behalf
of the applicant (wisely) abandoned prayers 4 - 6 of the notice of motion, i.e.
orders requesting a determination that this Honourable Court must hear the
unfair dismissal on the merits (prayer 4); that the Honourable Court order that
the 1st Respondent re- instate the applicant (prayer 5), and alternatively
compensate the unfairness of the dismissal (prayer 6).
Facts
[3] The salient facts relating to this application, save for aspects to which, in that
context, I shall make specific reference, are not in dispute. They may be
summarised as follows.
[4] Mr Mas emola was dismissed on 27 September 2021 by the first respondent,
Nuclear Energy Corporation of South Africa (“ NECSA”) for misconduct. The
charge against him emanated from the evidence he gave as a witness during a
1 No. 66 of 1995, as amended
3
disciplinary hearing of a co-employee. In his dismissal letter, Mr Masemola was
granted a right to appeal the decision within ten (10) working days thereof.
[5] On 06 October 2021 Mr Masemola noted an appeal against his dismissal. The
letter is titled “NOTICE OF APPEAL ” and prima facie contains reasons for the
said appeal and it records:2
“Kindly note that we act on behalf of the abovementioned client Lebogang
Masemola. It is further our instruction to note an appeal against the decision
to summarily terminate our client’s employment.
…”
[6] On 08 October 2021 , in response to the letter titled “NOTICE OF APPEAL”,
NECSA acknowledged Mr Masemola’s letter and recorded:
“Please be advised that we note your notice of appeal and accordingly
attach an Appeal Form.
[7] At paragraph 25 of the founding affidavit, Mr Masemola alleges that on 11
October 2021 he completed the said “Appeal Form” and he attaches same as
annexure C, thereto
3, albeit this is denied by NECSA.
[8] On 26 October 2021 NECSA sent another letter to Mr Masemola requesting
him to complete the said Appeal Form “to enable us to arrange and schedule
the appeal accordingly”
4. This letter was not responded to.
[9] Upon not receiving any response to his “noted appeal”, in February 2022
Mr. Masemola referred a dispute of unfair dismissal to the CCMA, this was
accompanied by a condonation application. In response, NECSA filed an
opposing affidavit setting out succinct grounds of opposition. Mr. Masemola
failed to file a replying affidavit dealing with issues raised in the opposing
affidavit.
2 Record page 165, annexure IM2,
3 Record, page 10, paragraph 25
4 Record, page 171Annexure IM4,
4
[10] On 14 April 2022, the CCMA issued a ruling dismissing the condonation -
without calling parties for oral submissions.
[11] This review application concerns the above ruling, unsurprisingly, it was also
filed late accompanied by a condonation application.
Principles governing condonation
[12] It is apposite to appreciate that labour disputes, by their very nature, require
speedy resolution 5. Delays undermine the primary object of legislation
designed to afford expeditious outcomes to employers and employees.
[13] Failure by parties to comply with the rules of court or directions is not of recent
origin. Non -compliance has bedevilled our courts at various levels for the
longest of time. Hence the obvious saying: 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 default6.
[14] The primary principles governing consideration of a condonation applications
where a party is barred from proceeding because they have failed to comply
with the time limit for filing some form of legal process were confirmed
in Melane v Santam Insurance Co Ltd
7:
In deciding whether sufficient cause has been shown, the basic
principle is that the Court has a discretion, to be exercised judicially
upon a consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant are the degree
5 CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; 2009 (2) SA 204 (CC); 2009
(1)BCLR 1 CC para 63
6 Von Abo v President of the Republic of South Africa [2009] ZACC 15; 2009 (5) SA 345 (CC); 2009
(10) BCLR 1052 (CC) at para 20 and Van Wyk above n 1313 at para 22
7 1962 (4) SA 531 (A), at 532C-G
5
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 are no prospects of success there would be no point in granting
condonation. Any attempt to formulate a rule of thumb would only serve
to harden the arteries of what should be a flexible discretion. What is
needed is an objective conspectus of all the facts. Thus a slight delay
and a good explanation may help to compensate for prospects of
success which are not strong. Or the importance of the issue and
strong prospects of success may tend to compensate for a long delay.
And the respondent's interest in finality must not be overlooked. I would
add that discursiveness should be discouraged in canvassing the
prospects of success in the affidavits.”
[15] In Grootboom v National Prosecuting Authority (“ Grootboom”)8 the apex
court confirmed that the standard for considering an application for condonation
is the interests of justice. However, the concept “interests of justice” is so
elastic. As Boiselo AJ puts it:
“The factors that are taken into account in the inquiry include as applied by
the Constitutional Court include:
(a) the length of the delay;
(b) the explanation for, or cause for, the delay;
(c) the prospects of success for the party seeking condonation;
(d) the importance of the issue(s) that the matter raises;
(e) the prejudice to the other party or parties; and
(f) the effect of the delay on the administration of justice
8Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC); (2014) 35 ILJ 121
(CC); [2013] ZACC 37; 2014 (1) BCLR 65 (CC) at para 22 ; 22 and 51
6
Although the existence of the prospects of success in favour of the party
seeking condonation is not decisive, it is an important factor in favour of
granting condonation”9.
[16] The court must be fair to both sides and must also consider the broader
objects of the LRA, including the importance of expeditious resolution of
employment disputes 10. Whenever an appellant realises that they have not
complied with a rule, they should apply for condonation without delay11.
[17] T he Labour Appeal Court’s approach conforms with the principles above. In re
Ngwenya v Trustees for the time being of Sishen Iron Ore Company
Community Development Trust and Another 12 LAC stated:
“[14] The grant of condonation involves the exercise of a discretion, with a
decision to condone a party's non- compliance with the rules of the court or
directions constituting an indulgence granted by the Court. Such an
application should be granted if, having regard to the particular
circumstances of the matter, it is in the interests of justice to do so, and
refused if it is not. To reach a decision, regard is to be had to factors
including the nature of the relief sought, the extent and cause of the delay,
the reasonableness of the explanation for the delay, the importance of the
issue to be raised, issues of prejudice and the prospects of success. As a
general proposition, the factors to be considered are not individually
decisive of an application for condonation but are all considered to
determine what is in the interests of justice
13”.
[18] Amongst other things these dicta make it clear, apart from the factors
mentioned in Melane, questions of prejudice and the effect on the
administration of justice are also factors that should also be considered. The
nature of the relief sought is also a factor bearing consideration.
9 Grootboom, ad paragraph 50
10 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) (Melane) at 532C; Grootboom above n 5
para 22; Steenkamp above n 13 para 38
para 22; Steenkamp above n 13 para 38
11 Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G
12 (2024) 45 ILJ 1220 (LAC)
13 See s 191(1)(b) and 191(2) of the LRA.
7
[19] For example, in an application for condonation for the late filing of a petition
for leave to appeal to the LAC against a labour court judgement reviewing an
arbitration award, might warrant much greater attention being paid to the
prospects of success, given that the underlying dispute has already been
considered by two independent adjudicators, albeit in different types of
proceedings.
[20] By contrast, an application for condonation for a late referral of an unfair
dismissal dispute to CCMA concerns a dispute which has never been
canvassed by a completely independent adjudicator and accordingly , the
aggrieved party has not yet had the opportunity to exercise that right. It must
also be borne in mind that the referral is the only gateway for an employee to
exercise their constitutional right to fair labour practices as provided for by the
LRA. Closing that avenue means the employee is deprived of any hearing of
their unfair dismissal claim. That said, the LRA still imposes time limits on an
employee to launch their claim and a failure to do so timeously will prevent
them from advancing their claim, unless they show good cause for ignoring
their non-compliance.
Analysis
[21] In terms of section 145 of the LRA, the applicant has six weeks from the date
of the ruling to apply to the Labour Court for an order setting aside the
arbitration award/ruling.
[22] The CCMA ruling was delivered on 14 April 2022, meaning that the review
application was to be launched by no later than 26 May 2022. The review
application was served somewhat 31(thirty-one) days late.
[23] What follows is an explanation proffered by Mr Masemola for the late filing of
the review application. In the main, we are told that part of the delay was
caused as a result of the termination of the mandate of Mr Masemola’s
erstwhile attorneys because he was not satisfied with their performance. T he
current attorneys of record, Raymond Sutton Inc were approached post facto -
current attorneys of record, Raymond Sutton Inc were approached post facto -
on the 30 May 2022 i.e. after due date for the filing of the review application.
By way of an overview, much of the 31 days delay was spent on; consulting
8
with his new attorneys; his attorneys having to obtain a complete record/file of
the matter from his erstwhile attorneys and ultimately from the CCMA –
Pretoria, on considering the matter, obtaining further instructions and advising
Mr Masemola and drafting of the current application14.
[24] The explanation proffered by Mr Masemola’s legal team for the delay is not
exemplary in that it lacks full explanation on the everyday account of events
since first consultation with him on 30 May 2022 as one would have expected.
Be that as it may, the explanation is reasonable and the 31 days delay in the
circumstances of this case is not overly excessive.
[25] I put significant weight on t he fact that Mr Masemola, albeit for various
reasons, was not afforded an opportunity to appeal / have his case heard by
an independent adjudicator. Further refusal by this court to grant indulgence,
will be tantamount to shutting the door of justice on his face, this to me, would
lead to untenable miscarriage of justice which infring es on Mr Masemola’s
constitutional rights conferred in section 23 and 34 of the Constitution. These
rights, though not sacrosanct, are palpably entrenched.
[26] I am mindful of the nature of the preferred charges against Mr Masemola, i.e.
that “he provided false testimony during a hearing of a co- employee”, that on
its own deserves a second consideration by an independent adjudicator . A
proposition that a witness who testified for a co- employee automatically gave
false testimony in the event of a guilty finding of that co- employee is far -
fetched. Prima faci e the conviction of Mr Masemola was based on
circumstantial evidence. Meaning that the prospects of success cannot be
said to be so hopeless that condonation should be denied.
[27] In the circumstances I am inclined to condone the late filing of the r eview
application. I now turn to the commissioner’s ruling.
14 Record page 13, Founding Affidavit paragraphs 38 – 51
9
The Commissioner’s ruling
[28] In a r ather terse ruling, and where no parties were invited for oral
submissions, the commissioner dismissed the cond onation application for
reasons set out in summary below.
[29] Unsurprisingly, he found that the delay of 134 days to be excessive. This was
premised on a finding that Mr Masemola was dismissed on 14 September
2021 and his referral was onl y noted on 04 March 2022. As it would be clear
below, these dates are disputed. He finds that the fact that Mr Masemola was
assisted by an attorney exacerbated the situation.
[30] He also finds that the prospects of success are “tentative”. That being
assisted by legal practitioner, Mr Masemola was expected to give more
convincing submissions on his prospects of success.
[31] Regrettably, to say that the ruling is poorly reasoned would be an
understatement, it is woefully lacking in reasoning and substance.
Standard of review of condonation ruling
[32] In Nature's Choice Products (Pty) Ltd v Food & Allied Workers Union &
others15 the LAC confirmed that :
[11] The consideration of a request for condonation involves the exercise of a
judicial discretion which has been described as a 'wide discretion', or a
discretion 'loosely so called'. In Motloi v SA Local Government Association,
McCall AJA summarized the position on appeal as follows:
'In my judgment the discretion conferred on the court of first instance in
deciding whether or not to grant condonation for the late referral of a
dispute is a wide discretion or a discretion "loosely so called". The court
of first instance is required to arrive at a decision "in the light of all
relevant considerations" such as the length of the delay, the prospects of
success in the main application, the possible prejudice to the parties and
15 (2014) 35 ILJ 1512 (LAC).
10
the blame attaching to the parties (cf the Knox D'Arcy Ltd case at 362B -
C). The court on appeal is in as good a position as the court a quo to
decide whether or not good cause has been shown for granting
condonation, and, that being so, it may substitute its decision for that of
the court a quo if "it considers its conclusion more appropriate" (see the
Bookworks (Pty) Ltd case at 805A-D).'
[12] It is thus established in the Motloi case that on appeal, this court
may substitute its decision for that of the court a quo if it considers its
conclusion to be more appropriate.
[33] In an appeal against a condonation ruling by the Labour Court, the L AC
in Colett v Commission for Conciliation, Mediation & Arbitration &
others
16 reaffirmed the test adopted by the Constitutional Court in Mabaso v
Law Society, Northern Provinces & another17 to decide such an appeal:
“[29] A court of appeal will not lightly interfere with the exercise of a
judicial discretion by a lower court. An appellant who challenges the
exercise of a judicial discretion will have to show that such discretion was
not exercised judicially. More specifically the appellant will have to show
that the court a quo either —
29.1 failed to bring an unbiased judgment to bear on the matter;
29.2 did not act for substantial reasons;
29.3 exercised its discretion capriciously or arbitrarily;
29.4 exercised its discretion upon wrong principle;
29.5 committed a misdirection of such a serious nature and degree as
to justify a conclusion that it acted improperly or unreasonably.
[30] The legal position was summarized as follows by the Constitutional
Court:
16 2014) 35 ILJ 1948 (LAC)
17 2005 (2) SA 117 (CC)
11
'It is trite law that a court considering whether or not to grant
condonation exercises a discretion. The discretion must, of course be
exercised judicially on a consideration of all the facts and "in essence it
is a matter of fairness to both sides". It is clear that the SCA may
decide an application for condonation without considering the merits of
the case, though it does so only where there is a gross and flagrant
failure to comply with the rules. Ordinarily, the approach of an Appellate
Court to the exercise of such a discretion is that it will not set aside the
decision of the lower court
"merely because the Court of appeal would itself, on the facts of the
matter before the lower court, have come to a different conclusion; it
may interfere only when it appears that the lower court had not
exercised its discretion judicially, or that it had been influenced by
wrong principles or a misdirection on the facts, or that it had reached a
decision which in the result could not reasonably have been made by a
court properly directing itself to all the relevant facts and principles.
(Footnotes omitted)”.
[34] In Bosch v Seynhaeve NO18 the court held that,
“It follows that a review of an arbitrator’s condonation ruling must not be
assessed on a less stringent standard. In reviewing the ruling of an
arbitrator exercising a flexible discretion in the application of the multi -
factor test applicable to condonation rulings, a court needs to be mindful
that the review is confined to the ambit of the abovementioned grounds for
interfering with the exercise of a wide discretion”.
18 (159/2023) [2024] ZALCCT 25 (27 June 2024)
12
Grounds of Review
[35] Mr. Masemola attacks the commissioner ’s ruling arguing for a number of
reasons that it is one no reasonable commissioner could reach. For the
purposes of the judgment it is not necessary to regurgitate the grounds
verbatim.
[36] In summary, the main grounds of review raised by the applicant can be
formulated as thus –
36.1 The commissioner failed to properly apply his mind to the facts of the
matter.
36.2 The commissioner failed to appreciate the fact that the reason for lateness
is that Mr Masemola followed NECSA’s internal appeal procedures by
noting an appeal – this version cannot be seriously disputed.
36.3 The noted appeal provided plausible and reasonable explanation for the
late referral in that, to date, acc ording to Mr Masemola, NECSA has failed
to schedule a date for the appeal.
36.4 The commissioner failed to appreciate and apply his mind to the nature o f
the charges in that Mr Masemola was dismissed on the conduct of
another employee. This alone, should have created “ curiosity” which in
essence suggested a good prospects of success, or so the argument by
Mr Masemola went.
36.5 It is also submitted that NECSA failed to produce evidence in support of a
guilty verdict, as the sole source of evidence was Mr Masemola’s own
statement.
36.6 That the commissioner placed undue weight on the degree of lateness
and failed to consider other factors such as fairness to all parties.
13
Evaluation
[37] Bearing in mind the narrow scope of the review inquiry in this case, I will focus
on the alleged fundamental misdirection of the arbitrator.
Misdirection of facts
[38] While the “Termination Letter” is dated 14 September 2021, it is common
cause that same was only provided to Mr Masemola on the 27 September
2021. Accordingly, the commissioner misconstrued the facts by finding that
the dismal occurred on 27 September 2021, when in fact it took place on 14
September 2021. In addition to that, it would seem that the date of the referral
was 10 February 2022
19, however, the commissioner refers to an incorrect
and later date of 04 March 2022. Perhaps the commissioner was short -
changed by lack of oral submissions which could have cured this error.
[39] Informed by an incorrect date of the dismissal (and possibly referral date as
well), the commissioner miscalculated the degree of lateness to reach a
conclusion that the degree of lateness was excessive.
[40] But it would seem to me that even if the commissioner captured the dates
referred to above correctly, the most egregious mis direction of facts wa s that
he failed to appreciate that it wa s common cause that Mr Masemola took
steps to exercise his right of appeal in that on 06 October 2021 when he
noted an appeal against his dismissal. The commission is taciturn on this fact.
Acknowledging the noted appeal would have also been relevant in the
determination of the lateness of the referral.
[41] While NECSA acknowledged Mr Masemola’s noted appeal, it injudiciously
argues that Mr Masemola failed to lodge an appeal, this is so because he
failed to complete the prescribed “Appeal Form” ( to NECSA’s satisfaction ).
Accordingly, he showed no interest to pursue the appeal, so the argument
runs. But this proposition by NECSA is difficult to discern because in their
19 Referral form, annexure D, on page 59 of the Record.
14
letter dated 08 October 2021, NECSA unequivocally notes the appeal, albeit ,
it provided prescribed appeal form.
[42] In a follow up l etter dated 26 October 2021, NECSA states that the “appeal
form” was required “to enable us(NECSA) to arrange and schedule the appeal
accordingly”. The contents of this letter does not support a proposition that no
appeal was noted as NECSA forcefully wants me to find.
[43] On the facts of this case, to hold that no appeal was lodged because a
prescribed form was not completed (not to NECSA’s satisfaction) , would be
elevating form over substance, a principle which our legal system bemoans.
An appeal noted and in reality, nothing stood i n NECSA’s way to schedule a
hearing date for the appeal.
[44] Had the c ommissioner appreciated these basic yet crucial facts above, he
would have realised, at best that an appeal was somehow pending, or at least
that, while the appeal was noted it was incorrect to calculate the so-called
degree of lateness from 14 September 2021 as he did. In essence, NECSA
was complicit in the delayed referral in that it failed to deal with the noted
appeal meaningfully and decisively.
[45] Apropos, I am satisfied that the commissioner misdirected himself in the
condonation inquiry, by not proper ly appreciating the uncontroverted facts
alluded to above. The conclusion that the referral was excessively late is
devoid of facts and fails to appreciate the reasons for such lateness.
Fairness, prejudice and interest of justice
[46] It is apparent that the commissioner omitted to consider the question of
fairness, prejudice and interest of justice. At the very least, he ought to have
weighed up the prejudice to NECSA in allowing the matter to proceed to
arbitration against the prejudice to Mr. Masemola were his claim not be
permitted to go further. It goes without saying that an employee will always be
prejudiced if they are refused condonation and consequently denied an
prejudiced if they are refused condonation and consequently denied an
opportunity to have their unfair dismissal claim adjudicated.
15
[47] This does not mean the employee’s interest in exercising that right is a trump
card which will always supersede the interest of the employer . Where the
employee adopts a dilatory approach to exercising a right which should be
exercised expeditiously and cannot justify their dilatoriness , the employee is
at risk of being denied the remedy.
[48] I have already found that upon his dismissal, Mr Masemola took steps to
prosecute his appeal, he was not dilatory in noting his appeal on 06 October
2021.
[49] Had the commissioner considered the noted appeal, it might have tipped him
to exercise his discretion in the favour of Mr Masemola. In particular, I have
also made a finding that NECSA was seized with the appeal, all it had to do
was to schedule a hearing date, to simply wait for the completed “appeal
form” was being overly tactical and this contributed to the delay of the
prosecution of this matter.
[50] In addition, it is necessary for the court to reconsider the application taking
account of the finding that the commissioner should have also considered the
nature of the changes and the evidence ( or lack thereof) which was used in
finding Mr Masemola guilty. By mere cursory glance of the ruling, this exercise
was not conducted by the commissioner.
Substitution
[51] What the court is dealing with is an applicant who was dismissed for allegedly
giving evidence during a hearing of a co -employee. He has raised grounds
why his dismissal ought to be found unfair which, if proven, he ought to
succeed, though not necessarily in every respect. He has a plausible case to
pursue.
[52] The internal enquiry seems to have been sketchy, the case seems to be that
because he testified for a co- employee who was eventually found guilty, his
testimony of being an alibi for a co-employee was false. Mr Masemola alleges
16
that the employer’s surveillance cameras could have been used to deal with
this aspect of the case. This crucial question remains unanswered.
[53] If there was a sense of delay, it cannot seriously be suggested that Mr
Masemola obviously dragged his heels and had not shown a clear intention to
dispute his dismissal with the initial support of his erstwhile attorney. The
primary question is whether the delay should be excused given all the other
relevant factors, including the need for expeditious dispute resolution. In
regard to the latter, it bears noting that the delay occasioned by the applicant
originally has been eclipsed many times over by the time taken up with the
review application.
[54] Upon consideration of the nature of the dispute, the length of the delay, albeit
poor explanation for it, the fact that there are prima facie prospects of success
if Mr Masemola can prove his contentions, the limited prejudice the delay
could have caused NECSA, the need for expeditious dispute resolution, and
the interests of fairness to both parties, then in my view, condonation should
be granted.
[55] Both parties seek costs order against each other, considering the results, I am
not persuaded that it would be in the interest of justice to warrant any cost
order.
[56] In any event, I must mention that I agree with NECSA that, Mr Masemola’s
attorneys, Raymond Sutton Inc. have recklessly filed a voluminous review
application which includes an alleged reply to the opposing affidavit in the
CCMA. This stratagem by Raymond Sutton Inc. is lamentable and boarders
on abuse of court process and ordinarily deserves censorship, and for this
reason, despite the perceived success, Mr Masemola would not be entitled to
any costs order.
17
Order
1. The condonation of the late filing of the review application is condoned.
2. The condonation ruling of the third respondent under case number
GATW3123 – 22 dated 14 April 2022 is reviewed and set aside.
3. The appl icant’s unfair dismissal dispute must be enrolled by the s econd
respondent for conciliation, within 30 days of receipt of this judgment.
4. There is no order as to costs.
_______________________
T Mosikili
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. DMC de Koker
Instructed by: Raymond Sutton Inc.
For the Third Respondent: Adv BT Moeletsi
Instructed by : Semenya Gwangwa Inc