About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2025
>>
[2025] ZALCPE 26
|
|
Kakancu v Commission for Conciliation, Mediation and Arbitration and Others (PR210/16) [2025] ZALCPE 26 (7 November 2025)
THE
LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Reportable
Case no: PR210/16
In the matter between:
AMANDA
KAKANCU
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
ANTHONY MARE
N.O.
Second Respondent
EASTERN
CAPE LIQUOR BOARD
Fourth Respondent
Heard:
22 October 2025
Delivered:
07 November 2025
JUDGMENT
STEENKAMP, AJ
Introduction
[1]
The matter came before this Court as an
unopposed application for reinstatement of a review application,
together with an application
for condonation for the late filing of
the record in the review proceedings as well as the late filing of
the replying affidavit
in the review proceedings
Background facts
[2]
The Applicant was employed by the Third
Respondent and alleges that she experienced harassment,
discrimination, abuse, and humiliation
in the workplace. She asserts
that she was demoted and subjected to disciplinary action, ultimately
leading to her resignation.
Consequently, she referred a constructive
dismissal dispute, as provided for in Section 156 of the Labour
Relations Act (‘LRA’),
to the First Respondent. The
arbitration proceedings did not result in a favorable outcome for the
Applicant, and on or about 29
August 2016, the Second Respondent
issued an arbitration award under case number ECEL:4004-2010
dismissing the Applicant’s
claim.
[3]
She subsequently, with the assistance of
her trade union, NEHAWU referred the matter to this court on review.
The six-week
period within which an application for review ought to
have been launched, calculated from 29 August 2016, lapsed on 10
October
2016.
[4]
The review process was initiated by way of
notice of motion, which was filed with the registrar of this court on
21 February 2017,
some 19 weeks after the six-week period within
which to refer the matter to this court lapsed. No affidavit
accompanied the
notice of motion. On the same day, a notice of
motion for condonation was filed, but again, no founding affidavit
accompanied
same.
[5]
Thereafter, and on 03 March 2017, a
“founding affidavit” deposed to by the Applicant was
filed. In this threadbare
affidavit, the Applicant dealt with
both the grounds of review as well as the issue of condonation.
[6]
On the score of condonation, the Applicant
contends that she only became aware of the arbitration award on 19
September 2016, when
the award was brought to her attention by her
union representative, Mr Elefu. Mr Elefu allegedly indicated he
would consider
and analyse the award with colleagues, but by
mid-October 2016, the Applicant learned that the review application
had not been
filed. On 20 October 2016, Mr Elefu ostensibly applied
to the registrar of this court for a case number.
[7]
The Applicant avers that incomplete
recordings were delivered by the First Respondent to the registrar
and upon discussion with
Mr Elefu, she realized that the entire
cross-examination of Ms Makala of the Third Respondent was omitted.
[8]
On an undisclosed date, the Applicant
allegedly learned that the person tasked with transcription of the
record in Johannesburg
passed away. No confirmation in this
regard was annexed to the affidavit for condonation.
[9]
Despite further attempts to contact her
union representative and seeking legal assistance—which proved
financially prohibitive—she
enlisted the help of a candidate
attorney in Gqeberha to draft the necessary application on 30
November 2016. Ultimately, on 21
February 2017, the same date upon
which the notice of motion for review was filed with this court, the
Applicant alleges that she
happened upon Mr Matu, a provincial
paralegal officer from NEHAWU, who then assumed responsibility for
her representation in these
proceedings. The Applicant contends
that the review application was filed three months late.
[10]
The
Applicant’s calculation of the delay is incorrect. Rule 7
read with Rule 7A of the Rules for the Conduct of Proceedings
in the
Labour Court
[1]
(‘the
old Rules’) applied at the time. Rule 7A(1) expressly
stated that a notice of motion must be delivered and
in terms of Rule
7A(2)(c) the notice of motion must be accompanied by an affidavit.
A complete application was thus only
delivered when the affidavit was
filed on 03 March 2017. The review application was thus filed
19 weeks late.
[11]
The state attorney, acting on behalf of the
Third Respondent filed a notice of opposition on 10 March 2017.
[12]
On 13 March 2017, Mr Matu filed a
supporting affidavit wherein he
inter
alia
stated “…
we
have apologized to Amanda Kakancu letting her down…….”
.
A loose copy of the arbitration award was also filed on even date.
It was not initially annexed to the notice of motion,
nor the
founding affidavit.
[13]
On 17 March 2017, the First Respondent
filed a notice of compliance with Rules 7A(2)(b), 7A(3) and 7(9) and
confirmed that the record
of proceedings, including one compact disc
was filed with the registrar of this court.
[14]
On or about 14 June 2017, the “written
record” of proceedings was ostensibly filed with this court.
[15]
The 60-day period within which the record
of proceedings had to be filed lapsed on 17 June 2017. No transcript
of the arbitration
proceedings was filed by the time the 60-day
period lapsed.
[16]
Under cover of a filing notice dated 24
July 2017, a seemingly incomplete transcript of the record was filed
with the registrar
of this court on 04 August 2017.
[17]
Ignoring for the moment that the review
application was instituted late, calculated from the date upon which
the review was instituted,
the one-year period within which all
documents and pleadings in a review application ought to have been
filed (excluding heads
of argument) lapsed on 03 March 2018.
[18]
The balance of the record was filed with
the registrar on or about 22 May 2018.
[19]
The Third Respondent filed an answering
affidavit on or about 24 October 2018.
[20]
The Applicant contacted Mr Matu during
January 2019, who advised her that he was on suspension and her
matter was handed over to
one Advocate Maraka, whom she contacted via
Facebook messenger, to confirm whether he had in fact taken over her
matter.
[21]
An extended period of inaction followed,
and on 18 February 2020, van Niekerk, J (as he then was) issued a
directive stating the
review application is deemed to have been
withdrawn in terms of clause 11.2.3 of the Practice Manual. At
the time this directive
was issued, 23 months (or 1 year and 11
months) had passed since the review application was launched.
[22]
The Applicant alleges that due to the onset
of the Covid-pandemic and the resultant national lockdown, as of 26
March 2020, only
essential workers were permitted to move around, and
she could not pursue her case at the time.
[23]
Mr Matu, on the Applicant’s version,
after allegedly returning after his period of suspension, ignored her
calls and messages,
and she finally reached him through Facebook
Messenger during April 2020. She also advised that she has
returned to Gqeberha
from Bloemfontein to pursue her case.
[24]
She allegedly contacted this court on an
undisclosed date, and she was advised that the matter has been
archived, and reinstatement
was necessary.
[25]
Thereafter, she managed to get hold of Mr
Matu during July 2020, and she conveyed to him that the matter needed
to be reinstated.
They met during August 2020. She was
advised that the evidence of the two board members would not be used
during the review
process as it did not “
form
part of the documents he submitted previously
”.
[26]
This is where the explanation offered for
the delay in prosecuting the review application ends.
[27]
Be that as it may, 3 years passed since the
Applicant allegedly advised her union that the review is deemed to
have been withdrawn,
on 06 and 07 July 2023 respectively, a notice of
motion and founding affidavit of the Applicant for reinstatement of
the review
and condonation was signed. There is no record in
the court file that these documents were filed with the registrar of
this
court prior to 11 December 2024, which is the date stamp
reflected on the first page of the aforesaid notice of motion.
[28]
On 11 July 2023, a notice in terms of rule
7A was filed by the Applicant.
[29]
On 11 December 2024, an index to the
reinstatement application was filed by the Applicant.
[30]
On 09 October 2025, the Applicant filed a
replying affidavit, together with an application for condonation for
the late filing of
the replying affidavit. On the Applicant’s
own version, the replying affidavit is 7 years late.
Legal Framework
[31]
Section
145(1)(a) of the Labour Relations Act
[2]
(‘LRA’)
determines that an application for review of an arbitration award
must be made within 6-weeks of the date that
the award was ‘served’
on the applicant. If an application for review is filed outside
of the 6-week period,
this Court lacks jurisdiction to entertain the
review, unless condonation for non-compliance with the statute is
sought and granted.
[32]
At
the time that the review application
in
casu
was launched, the Old Rules and the Practice Manual
[3]
(‘Practice
Manual’) were still in force.
[33]
The
Practice Manual expressly required that, for the purposes of rule
7A(6), the record must be filed within 60 court days from
the date
the applicant is notified by the Registrar that the record has been
received.
[4]
Failure
to do so attracted the consequences set out in Clause 11.2.3 of the
Practice Manual, which stipulated that if an applicant
failed to file
the required record within the specified time frame, the application
is considered withdrawn unless the applicant
obtained the
respondent’s consent for an extension, or, if consent was
refused, an extension of time was formally sought
from the Judge
President of this Court prior to expiry of the 60-day period.
[34]
The
Labour Appeal Court (‘LAC’) made it clear that the
provisions of the Practice Manual were peremptory.
[5]
[35]
The
provisions and implications of Clause 11.2.7
[6]
and
Clause 16
[7]
of
the Practice Manual are equally applicable to the present matter.
[36]
Once
the provisions of Clause 11.2.7 have been triggered, the matter is
automatically deemed to have been withdrawn, and it is trite
that an
application for reinstatement together with condonation for the late
filing of the record is necessary to revive the review.
[8]
[37]
In casu
,
there has been non-compliance with the statutory time periods, as
well as the time periods prescribed in the Old Rules and the
Practice
Manual.
[38]
Insofar
as non-compliance with the statutory time period prescribed in
Section 145(1)(a) of the LRA is concerned, a more stringent
evaluation of the period of delay and the reason proffered is
required.
[9]
[39]
The granting or refusal of condonation
engages judicial discretion exercised with due deference to the legal
framework as well as
consideration of the distinct facts of each
matter.
[40]
The
Apex Court in
Grootboom
v
National Prosecuting Authority and Another
[10]
(‘
Grootboom
’)
said
the following:
‘
It
is by now axiomatic that the granting or refusal of condonation is a
matter of judicial discretion. It involves a value judgment
by
the court seized with a matter based on the facts of that
particular case.’
[41]
More
recently, in
Government
Printing Works v Public Service Association and Another
[11]
(‘
Government
Printing Works’
)
the LAC outlined the legal principles governing judicial discretion
in granting condonation for non-compliance with procedural
rules,
particularly in labour matters. The Labour Court is required to
exercise fairness to both parties and consider the broader
objectives
of the LRA, emphasizing the importance of resolving employment
disputes expeditiously. The key factors in determining
whether
condonation is in the interests of justice include: the nature of the
relief sought, the extent and cause of the delay,
the effect of the
delay on justice and other litigants, the reasonableness of the
explanation for the delay, the importance of
the issue, and the
prospects of success. These factors must be considered holistically,
and no single factor is decisive.
Whereas the position was
previously that the Court may disregard prospects of success where
the delay is long and there is an insufficient
explanation for the
delay, the LAC has now confirmed that the prospects of success remain
a relevant consideration unless the cumulative
effect of other
factors renders the application unworthy of consideration.
[42]
As such, a flexible, proportional approach
is endorsed, requiring this court to assess all relevant factors
collectively to determine
the interests of justice. The seriousness
of a delay must also be considered in context, referencing the
permissible period for
the procedural step in question and their
purpose. Assessing whether a delay is excessive is a nuanced
process that requires
more than simply noting the days overdue.
The seriousness of a delay must be evaluated in light of the specific
procedural
timeframes involved. In
Government
Printing Works
, the LAC noted that the
delay of 84 days was excessive and the explanation unsatisfactory,
but an examination of the merits revealed
that the appellant had
strong prospects of success. The compelling prospects of
success and the importance of the matter
outweighed the excessive
delay and the inadequacy of the explanation for a portion of that
delay. Accordingly, the interests of
justice and fairness required
that condonation be granted by the LAC.
[43]
It remains important to place sufficient
facts before the court adjudicating an application for review and/or
an application for
reinstatement of a review, to reach a conclusion
on whether or not the delay is excusable.
Analysis
[44]
The entire review process before this court
has been tainted by egregious periods of delay.
[45]
The dispute arose during 2016. The
review application was instituted late, 19 weeks after the statutory
time period
to file the review lapsed. The 19 week period is
calculated from the date that the Award was delivered and ostensibly
received
by the Applicant’s trade union. Even if the
Applicant was only made aware of the award two weeks later, the award
was
still received by her union and the statutory time-period for
review began to run upon receipt of the award. There is no
reasonable explanation for the non-compliance with the statutory
time-period.
[46]
The review application was initiated on 21
February 2017 on notice of motion only. Rule 7A(2)(a) and (c) of the
old rules stipulated
that an application for review must be brought
on notice of motion, supported by affidavit.
In
casu
, the affidavit was only filed on
03 March 2017. As such, there was only a “proper”
application, as contemplated
in the rules, filed on or about 03 March
2017, despite the notice of motion having been filed prior thereto.
[47]
As already stated, the record of
proceedings was dispatched to the registrar of this court on or about
17 March 2017. On the
same date, the Third Respondent gave
notice of its intention to oppose the review.
[48]
The time-period for filing of the record
lapsed on 17 June 2017. There is nothing before this Court
demonstrating that the
Applicant sought any indulgence from the Third
Respondent for the latefiling of the record of proceedings, and no
directive was
sought, either formally as required by the Practice
Manual (or even informally) from the Judge President of this Court.
The
Applicant was also well aware of the opposition by the Third
Respondent since 17 March 2017, and there is no explanation why they
were not engaged to solicit an extension of time. Prior to the
expiry of the 60-day period, only the “written record”
as
the Applicant termed it, was filed.
[49]
On 24 July 2017, some 35 court days after
the provisions of Clause 11.2.2 of the Practice Manual had already
been triggered, a filing
notice was signed for filing of the portion
of the transcript that was available at the time. The official
stamp of the registrar
of this Court however evinces that the filing
thereof only occurred on 04 August 2017.
[50]
Thereafter,
and only on or about 22 May 2018, the remainder of the record was
filed. This was approximately 230 days since
the deemed
withdrawal of the review application. Despite this already
excessive delay, no application for reinstatement was
made at the
time. The notice of motion and founding affidavit for
reinstatement, despite being signed and deposed to on 06
and 07 July
2023 respectively, was only filed with the registrar on or about 11
December 2023, as per the court stamp. The reinstatement
and
condonation application was thus only delivered on the date that it
was filed with the registrar.
[12]
These
applications were filed some 7½ years after the review was
deemed to have been withdrawn.
[51]
The
dilatory trend continued with the Applicant’s replying
affidavit in the review only having been filed on or about 09 October
2025, shortly prior to the hearing of this matter. Considering
the fact that the Third Respondent’s answering affidavit
was
filed on 24 October 2018, the replying affidavit ought to have been
filed within 5 days from the date that the answering affidavit
was
received
[13]
, by no later than
1 November 2018. A period of 6 years and 11 months passed
before the replying affidavit was filed and condonation
was sought
for the lateness thereof.
[52]
With the period of delay being excessive to
the extreme, one would have hoped for a cogent and full explanation
of the entire period
of delay. Unfortunately, the explanation
offered is flimsy and only covers intermittent periods between the
time the review
application was launched and August 2020, where the
explanation for the delay in the prosecution of the review
application ends.
Considering the date that the founding
affidavit for reinstatement was deposed to, and the actual filing of
the reinstatement application
on 11 December 2024, another year and 5
months passed, which period is not explained.
[53]
In the application for condonation with
regard to the replying affidavit, a belated attempt was made to
excuse the various delays
in the prosecution of this matter, but this
was also woefully inadequate. Reasons such as NEHAWU being
“just a trade
union” and this inexplicably meant that
they were not equipped to deal with a review application timeously
was advanced.
Whilst it may be so that the particular trade
union officials were at some stage to blame for the delay, as well as
a candidate
attorney that gave poor advice to the Applicant, it
certainly does not cover the entire period of delay. These
reasons were
also advanced for the first time in the application for
condonation to excuse the late filing of the replying affidavit.
[54]
In
Saloojee
and Another NNO v Minister of Community Development
[14]
(‘
Saloojee
’)
the
former Appellate Division said the following:
‘
If,
as here, the stage is reached where it must become obvious also to
layman that there is a protracted delay, he cannot sit passively
by,
without so much as directing any reminder or enquiry to his attorney
and expect to be exonerated of all blame; and if, as here,
the
explanation offered to this court is patently insufficient, he cannot
be heard to claim that insufficiency should be overlooked
merely
because he has left the matter entirely in the hands of his attorney.
If he realises upon the aptitude or remissness of
his own attorney,
he should at least explain that none of it is to be imputed to
himself. That has not been done in this case.’
[55]
More
recently, it was held in
Aspen
Holdings Pty Ltd and Another v Phelane and Another
[15]
(‘
Aspen
’)
by Mohlahleni JP that:
‘
In
addition to the above, the appeal would still stand to succeed as the
Labour Court misdirected itself in dealing with the employee's
liability concerning the alleged lack of diligence by his legal
representatives. The test is not whether the legal representative
acted
mala fides
or intentionally in delaying prosecution of the dispute, thereby not
ensuring that the dispute was timeously referred to the CCMA.
The
test is whether the legal representative’s failure to correctly
advise the employee on the time frame for filing the
statement of
case was negligent. The incident of the Counsel’s failure to
check and confirm the legal time frame for filing
the statement of
case reveals negligence or incompetence. In the circumstances of this
case and following the authorities referred
to below, the Labour
Court ought not to have excused the employee from his
representatives’ negligence.’
In
A
Hardrodt (SA) (Pty) Ltd v Behardien and Others
,
[16]
this
Court held that:
“
The
catalogue of events reveals negligence, incompetence and gross
dilatoriness by the appellant's legal representatives. It is
difficult to see how that constitutes a good cause for condonation
with convincing reasons as laid down in
the
Queenstown Fuel Distributors CC
case.”
In
Superb
Meat Supplies CC v Maritz
,
[17]
this
Court held as follows:
“
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 or encourage
laxity on the
part of practitioners.”
[56]
The facts in
Aspen
are not dissimilar to the facts
in
casu
. The explanation offered for
the various delays is wholly unsatisfactory, and years of delay are
unexplained. Insofar
as ineptitude of union officials and a
candidate attorney is alleged, there are still excessive periods of
delay which are totally
unexplained, and the blame placed at the feet
of the representatives does not explain why the Applicant took no
steps to advance
or expedite prosecution of the matter, faced with
alleged ineptitude of her erstwhile representatives.
[57]
The Applicant has not demonstrated good
prospects of success either. Whilst allegations of
discrimination, harassment and
abuse are certainly serious, the
allegations set out by the Applicant in her various affidavits are
minimal. Furthermore,
this matter concerns a review, and the
reasonableness test sets a high threshold for review of arbitration
awards by this Court.
The pleadings do not reveal any factors
which would assist the court in concluding that the award is
assailable under Section 145
of the LRA. The Applicant
resigned due to alleged intolerable treatment whilst in the employ of
the Third Respondent,
but she did so when faced with disciplinary
charges. The Applicant thus also had a high threshold to meet
on constructive
dismissal. There is nothing in the papers that
convinces this court of the merits of the review application.
[58]
Counsel for the Applicant also made no
submissions in respect of the nature of her dispute being of such
concern in the broader
public context that it would serve the
interests of justice on the grounds of public policy to excuse the
excessive delay.
No such averments are made in the papers
either. The Court’s attention was drawn to the fact that
the applications
were not opposed, but that is certainly not a
consideration given the excessive nature of the delay together with
the failure to
explain the entire period of delay adequately, and in
the absence of good prospects of success.
[59]
The delays, which run into several years,
the lack of prospects of success and the complete failure to give a
reasonable explanation
of the entire period of delay, renders this
Court unable to exercise its discretion in favour of reinstating the
review application
and granting condonation.
[60]
Finally,
the Third Respondent has an interest in finality of this litigation.
In
Van
Wyk v Unitas Hospital and Another
[18]
(‘
Unitas
’)
the Constitutional Court held that the interest in finality of
litigation was an important factor to consider when the
issue of
condonation is dealt with by the Courts, and said the following:
‘
There
is an important principle involved here. An inordinate delay
induces a reasonable belief that the order had become unassailable.
This is a belief that the hospital entertained and it was
reasonable for it to do so. It waited for some time before
it
took steps to recover its costs. A litigant is entitled to have
closure on litigation. The principle of finality
in litigation
is intended to allow parties to get on with their lives. After
an inordinate delay a litigant is entitled to
assume that the losing
party has accepted the finality of the order and does not intend to
pursue the matter any further. To
grant condonation after such
an inordinate delay and in the absence of a reasonable explanation,
would undermine the principle
of finality and cannot be in the
interests of justice.’
[61]
Having considered all of the relevant
factors and facts, the following order is made:
Order
1.
The applications for reinstatement of the
review and condonation are dismissed.
2.
There is no order as to costs.
L.
Steenkamp
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
Adv. M Vuthuza
Instructed
by:
Madokwe Incorporated
For the First
Respondents: No appearance
[1]
GN
1665, GG 17495 of 11 November 1996, as amended
[2]
Act
66 of 1995, as amended
[3]
Practice
Manual of the Labour Court of South Africa, effective 1 April 2013
[4]
Ibid
Clause 11.2.2
[5]
Samuels
v Old Mutual Bank
(2017) 38 ILJ 1790 (LAC)
at
para 15. See also:
Tadyn
Trading CC t/a Tadyn Consulting Services v Steiner and Others
(2014) 35 ILJ 1672 (LC) at para 10 and 11.
[6]
Clause
11.2.7 of the Practice Manual stated that ‘A review
application is by its nature an urgent application. An
applicant in a review application is therefore required to ensure
that all the necessary papers in the application are filed
within
twelve (12) months of the date of the launch of the application
(excluding Heads of Arguments) and the registrar is informed
in
writing that the application is ready for allocation for hearing.
Where this time limit is not complied with, the application
will be
archived and be regarded as lapsed unless good cause is shown why
the application should not be archived or be removed
from the
archive.’
[7]
Clause
16.1 of the practice manual provided that ‘In spite of any
other provision in this manual, the Registrar will archive
a file in
the following circumstances: In the case of an application in terms
of Rule 7 or Rule 7A, when a period of six (6)
months has elapsed
without any steps taken by the applicant from the date of filing the
application, or the date of the last
process filed.’
[8]
Ralo
v Transnet Port Terminals and Others
(P136/2014)
[2015] ZALCPE 69;
[2015] 12 BLLR 1239
(LC); (2015) 36 ILJ 2653 (LC)
(15 June 2015) at para 11 and
Greater
Taung Local Municipality v South African Local Government Bargaining
Council and Others
(2023) 44 ILJ 761 (LAC).
[9]
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
(2000)
21 ILJ 166 (LAC) and
A
Hardrodt
(SA) (Pty) Ltd v Behardien and Others
(2002)
23 ILJ 1229 (LAC)
[10]
(CCT 08/13)
[2013] ZACC 37
;
2014 (2) SA 68
(CC);
2014 (1) BCLR 65
(CC);
[2014] 1 BLLR 1
(CC); (2014) 35 ILJ 121 (CC) (21 October 2013)
[11]
(JA35/24)
[2024] ZALAC 63
;
[2025] 2 BLLR 112
(LAC); (2025) 46 ILJ 915 (LAC)
[12]
‘
Deliver
’
in accordance with the Old Rules was defined as serve on other
parties
and
file with the registrar.
[13]
Rule
7A(10) of the old rules
[14]
1965
(2) SA 135 (A)
[15]
(JA
71/23)
[2025] ZALAC 4
;
[2025] 4 BLLR 409
(LAC) at paras 25 –
27, reported after the Government Printing Works judgment of the LAC
ibid
[16]
(2002)
23
ILJ 1229 (LAC) at para 4.
[17]
(2004)
25 ILJ 96 (LAC) at para 16.
[18]
Van Wyk v Unitas Hospital and Another (CCT 12/07)
[2007] ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 31