THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 1956/22
In the matter between:
DEPARTMENT OF SPORTS, ARTS, CULTURE
AND RECREATION Applicant
and
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL First Respondent
ISAAC KEKANA N.O Second Respondent
JEFFREY GAWE Third Respondent
Heard on: 12 August 2025
Delivered: 13 November 2025
___________________________________________________________________
JUDGEMENT
___________________________________________________________________
MAMANYUHA, AJ
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Introduction
[1] This is a review application, in which the a pplicant seeks to review and set
aside the arbitration award issued by the second respondent (the Arbitrator)
under case number GPBC 1523-20 on 13 August 2022.
[2] In the award, the Arbitrator ordered that the t hird respondent be
retrospectively reinstated, with backpay in the amount of R1,195 339.92 less
lawful deductions.
[3] The applicant failed to comply with the time periods prescribed in Rule
7A(8)(b) of the Labour Court Rules. It therefore seeks condonation for the late
filing of the Rule 7A(8)(b) notice.
[4] The third r espondent opposes the condonation application. It is common
cause that if condonation is not granted, this Court lacks jurisdiction to
consider the merits of the review.
[5] I accordingly deal first with the condonation application, as it is dispositive of
the matter
.
Background facts
[6] The applicant filed its review application on 28 September 2022. The
arbitration record, as required by Rule 7A(6), was filed on 23 January 2023.
[7] The applicant only filed the Rule 7A(8)(b) notice on 13 March 2023, after
being alerted to its non- compliance by correspondence from the Third
Respondent’s attorneys. The notice was 38 days out of time.
[8] Despite being aware of its default, the Applicant failed to file a condonation
application promptly. Condonation was sought only on 31 July 2025, more
than two years after the breach.
[9] No explanation whatsoever is provided for the period between March 2023
and July 2025. The condonation application merely asserts that oversight,
bereavement, and staff changes caused the delay, but does not indicate when
these events occurred or how they prevented compliance.
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[10] The applicant further failed to comply with this Court’s directive dated 20
February 2024, which required it to deliver heads of argument by 14 March
2024. As of 4 April 2024, no heads had been filed, prompting further
correspondence from the t hird respondent’s attorneys. The applicant only
delivered its heads of argument belatedly on 30 April 2024.
[11] The Applicant’s pattern of procedural default is, therefore, both persistent and
material.
Legal Framework for Condonation
[12] The test for condonation is well -established in Grootboom v National
Prosecuting Authority and A nother1, the Constitutional Court held that the
following factors must be considered:
‘(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.’
[13] The Court added that where the delay is unacceptably excessive and no
satisfactory explanation is given, there may be no need to consider the
prospects of success.
[14] The Labour Appeal Court in Collett v C ommission for C onciliation, Mediation
and Arbitration and others
2 (Collett) confirmed that:
‘without a reasonable and acceptable explanation for the delay, the prospects
of success are immaterial, and without good prospects of success, no matter
how good the explanation for delay, an application for condonation should be
refused.’
1 2013 (5) ZACC 37; (2014) 35 ILJ 121 at paras 50 and 51.
2 [2014] 6 BLLR 523 (LAC).
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[15] Similarly, in Allround Tooling (Pty) Ltd v NUMSA & others3, the Court held that
a condonation application must be filed as soon as a party becomes aware of
the need for it, and the absence of such promptness is fatal.
The Length of the Delay
[16] The Rule 7A(8)(b) notice was filed 38 days late, but the condonation
application was only filed over two years later, on 31 July 2025.
[17] A delay of this magnitude is excessive by any measure. In the absence of any
proper explanation, it is, on its own, sufficient to justify refusing condonation.
Explanation for the Delay
[18] The applicant attributes its non- compliance to oversight, personnel changes,
and the bereavement of its legal representatives.
[19] While the Court sympathises with personal loss, the Applicant failed to
indicate when these events occurred, how long they lasted, and how they
impeded compliance for over two years. In Independent Municipal and Allied
Trade Union (IMATU) obo Zungu v S outh African Local Government
Bargaining Council and Others)
4 it was held that:
‘The mere listing of significant events which took place during the period in
question without an explanation for the time that lapsed between these events
does not place a Court in a position properly to assess the explanation for the
delay.’
[20] In Ntsele v Commission for C onciliation, Mediation and A rbitration and
Others5, this Court held that a party seeking condonation must provide a full,
detailed, and accurate account of the causes of the delay, explaining each
period of default. The applicant has not done so. This Court is in no position to
understand or assess the reasonableness of the delay.
[21] The explanation offered is therefore wholly inadequate. It is neither
comprehensive nor compelling, and cannot sustain a plea for indulgence.
3 [1998] 8 BLLR 847 (LAC).
4 [2009] ZALC 137; (2010) 31 ILJ 1413 (LC) at para 13.
5 [2017] ZALCJHB 161 at para 9.
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[22] In the present case, there is no reasonable or acceptable explanation for the
delay, and the application for condonation accordingly cannot succeed.
Prospects of Success
[23] The Applicant contends that the review enjoys strong prospects of success,
but even if prospects existed, they are immaterial in the absence of a
comprehensive, convincing and compelling explanation for the delay . (See
Collett, supra.
Prejudice and the Interests of Justice
[24] The Third Respondent has endured more than three years of uncertainty
since the award, awaiting the outcome of the review. The prejudice against
him is real and ongoing.
[25] The Applicant’s prolonged inaction frustrates the expeditious resolution of
labour disputes, a key objective of the Labour Relations Act.
[26] Granting condonation in these circumstances would erode the authority of the
Court’s Rules, encourage procedural laxity, and undermine the administration
of justice.
Applicant’s Argument on “No Prejudice” and “Costs as Penalty”
[27] The Applicant argues that procedural blunders that have no substantive
implications should attract cost orders, not dismissal, and that there is no
prejudice, since it merely confirms reliance on its founding papers and does
not seek to supplement them.
[28] This argument cannot be sustained. Compliance with Rule 7A(8)(b) is not a
formality, it is a jurisdictional requirement that defines whether the matter is
properly before the Court.
[29] Where condonation is required and not granted, the Court is precluded from
entertaining the review. This is not a matter of discretion on costs but of
jurisdiction and procedural integrity.
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[30] The Applicant’s assertion of “no prejudice” ignores the systemic prejudice
caused to the administration of justice and to the opposing party, who is
entitled to procedural certainty and the finality of an arbitration award.
Conclusion
[31] The delay of more than two years is excessive and unexplained. The
explanation is unsatisfactory. The a pplicant’s argument that costs alone
should serve as a penalty misapprehends the nature of condonation.
[32] The applicant has failed to demonstrate good cause for the indulgence
sought. It has displayed a pattern of disregard for the Court’s Rules and
directives.
[33] The interests of justice do not favour granting condonation.
[34] Accordingly, the following order is made:
Order
1. The application for condonation for the late filing of the Rule 7A(8)(b)
notice is refused.
2. The review application is accordingly dismissed.
3. There is no order as to costs.
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T. Mamanyuha
Acting Judge of the Labour Court of South Africa
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Appearances
For The Applicant: Mr S. Kunene
Instructed by: State Attorney
For The Respondent: Adv S.S. Mashabela
Instructed by: Ipeleng Mompati Inc.