THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR703/22
In the matter between:
MFANUFIKILE DAZA Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER LUNGILE MTIYA Second Respondent
MINE HEALTH AND SAFETY COUNCIL Third Respondent
Heard: In Chambers
Delivered: 06 November 2025
This judgment was handed down electronically by emailing a copy to the
parties. The (date) is deemed to be the date of delivery of this judgment.
_________________________________________________________________________
JUDGMENT: LEAVE TO APPEAL
_________________________________________________________________________
MAMABOLO, AJ
2
Introduction
[1] The judgment, which is the subject of leave to appeal , was delivered on 14
May 2024. On 8 November 2024, the Applicant filed an application for leave
to appeal. This application was not accompanied by an application for
condonation.
[2] On 11 March 2025, the Court delivered a judgment to the effect that it lacked
the necessary jurisdiction to entertain the application for leave to appeal due
to the Applicant’s failure to file an application to condone the late filing of the
application for leave to appeal.
Length of the delay
[3] The application for leave to appeal is 22 weeks late, which is excessive.
[4] On 28 July 2025, the Applicant filed a document titled “FOUNDING
AFFIDAVIT (APPLICATION FOR CONDONATION)”. This founding affidavit
was not attached to a notice of motion as provided for in Rule 35, which
renders the application defective. However, for the sake of completeness and
taking into consideration the spirit and purport of the Labour Relations Act
1,
this defectiveness shall be condoned, and the application shall be dealt with
based on the contents of the founding affidavit.
Reasons for the delay
[5] The reasons advanced for the late filing filling of the application for leave to
appeal is essentially that Applicant was not aware of the existence of the
Rules of Conduct of Proceedings in the Labour Court and the provisions of
Rule 67 that requires an application for leave to appeal to be filed within 15
days of the date on which judgment was issued, that he relied solely on the
provisions of Rule 9 and lastly that , this was his first time filing an application
for leave to appeal.
[6] The court has inherent discretion to grant condonation where reasons for non-
compliance with the time limits have been explained to the satisfaction of the
1 Act 66 of 1995, as amended.
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court. Accordingly, condonation is not for the mere asking. Thus, the applicant
seeking condonation must provide a full explanation for the entire period of
the delay.
[7] Time periods in the context of labour disputes are of paramount importance
as the objective is to purely resolve disputes speedily. A delay thus
undermines the primary objective of the Labour Relations Act.
[8] The requirements that must be met in applications of this nature have been
clearly spelt out in the case of Melane v Santam Insurance Co Ltd
2. These
principles were restated by the Constitutional Court in the case of Grootboom
v National Prosecuting Authority & another
3.
[9] The explanation proffered by the Applicant is unsatisfactory. It is unacceptable
for the Applicant to state that he was unaware of the Rules of Conduct of
Proceedings in the Labour Court. Being a litigant in this court, the Applicant is
expected to familiarise himself with the Rules governing the conduct of
proceedings in this court. For him to come to this court and plead negligence
and/or lack of knowledge, is unacceptable. His negligence is inexcusable.
Accordingly, there is no reasonable explanation for the delay.
[10] Furthermore, it is apparent from the Applicant’s explanation that he was in
possession of the Rules of the Labour Court as he makes reference to the
2 1962 (4) SA 531 (A); [1962] 4 All SA 442 (A).
3 (2014) 35 ILJ 121 (CC); [2014] 1 BLLR 1 (CC) at para 50. The Constitutional Court stated that the
factors that are to be considered, in the interests of justice, in determining a condonation application
include the following:
‘(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.
(f) the effect of the delay on the administration of justice.
At para 51, the Constitutional court went on to find that “The interests of justice must be determined
with reference to all relevant factors. However, some of the factors may justifiably be left out of
consideration in certain circumstances. For example, where the delay is unacceptably excessive and
there is no explanation for the delay, there may be no need to consider the prospects of success. If
the period of a delay is short and there is an unsatisfactory explanation but there are prospects of
success, condonation should be granted. However, despite the presence of reasonable prospects of
success, condonation may be refused where the delay is excessive, the explanation is non-existent
and granting condonation would prejudice the other party. As a general proposition the various factors
are not individually decisive but should all be taken into account to arrive at a conclusion as to what is
in the interests of justice”.
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provisions of Rule 9. He declares that he had read and relied on the
provisions of Rule 9, which do not make any reference to the timelines within
which an application for leave to appeal should be filed. Had he read further,
he could have come across Rule 30, which sets out timelines for the filing of
an application for leave to appeal. His failure to do so amounts to sheer
negligence.
[11] To make matters worse for the Applicant, on 11 March 2025, the Applicant
became aware of the need to apply and file an application to condone the late
filing of the application for leave to appeal. It is common cause that the
application to condone the late filing of an application for leave to appeal was
only filed on 27 July 2025.
[12] The delay in launching this condonation application is excessive, taking into
consideration the fact that the Applicant was made aware of the need to bring
an application for condonation on 11 March 2025.
[13] The Labour Appeal Court in Allround Tooling (Pty ) Ltd v NUMSA & others
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restated the principle that a party applying for condonation must do so as
soon as s/he become aware of the need to do so. The Applicant in this matter
failed to observe this requirement. The Applicant knew of a need to apply for
condonation on 11 March 2025, and yet it took him more than 4 months to file
an application for condonation.
[14] In explaining the delay, the Applicant makes a bald statement that between
May 2025 to July 2025, he was sick. The whole period from 12 March 2025 to
the month of April 2025 is unaccounted for. This tells us that the Applicant
simply failed to make time for his matter , thus failing to take the interests of
the Respondent into account.
[15] Furthermore, the explanation lacks detail. The Applicant failed to take the
court into his confidence by stating the exact dates on which he took ill, he
further failed to state whether he was admitted and, if so, attach supporting
further failed to state whether he was admitted and, if so, attach supporting
documentation. Neither did he mention the extent of the illness. The
4 [1998] 8 BLLR 847 (LAC); [1998] JOL 2719 (LAC).
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Applicant’s failure to explain in any meaningful manner the date, duration and
extent of any obstacle on which reliance is placed leads to the conclusion that
he was lackadaisical.
[16] This bald statement is unsatisfactory and therefore fatal to the application for
condonation. It therefore goes without saying that the explanation is not
reasonable nor is it acceptable.
Prejudice
[17] The Applicant argues that the Respondent would not be prejudiced if
condonation is granted. The Applicant’s contract of employment was
terminated on 31 December 2021. Reference in the preceding paragraphs
was made to the spirit and purport of the Labour Relations Act. Fairness
dictates that the Third Respondent, and so is the Applicant, is entitled to
finality in the matter.
[18] The judgment in the review application was delivered on 14 May 2024. The
Respondent is thus entitled to assume and accept that the matter has
reached its natural conclusion, more especially when an application for leave
to appeal was not filed within the prescribed timelines.
[19] Put differently, inactivity by one party in the matter affects the interests of the
other party in the finality of the matter. Accordingly, the court finds that t he
granting of condonation in circumstances where the delay is unexplained
would be prejudicial to the Third Respondent.
Prospects of success
[20] With regards to the prospects of success, the Court was tasked to determine
whether the decision arrived at by the commissioner was one t hat a
reasonable decision maker could not reach. The review court found the
decision of the commissioner to have been within the bounds of
reasonableness.
[21] The evidence before the commissioner established that the Applicant , who
was employed on a fixed-term contract pending finalisation of the recruitment
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process, was subjected to an interview in terms of the recruitment process.
Unfortunately, he was unsuccessful. The outcome of the interviews was
communicated to the Applicant on 30 November 2021. O n 1 December 2021,
he was notified that his contract would come to an end on 31 December 2021.
Based on this evidence, which was , in the main, undisputed, the court is
convinced that the Applicant’s prospects of success are next to nothing.
[22] In view of the foregoing, the court finds that the Applicant has failed to make
out a case for condonation.
[23] Consequently, the following order is made:
Order
1. The application to condone the late filing of the application for leave to
appeal is dismissed.
2. There is no order as to costs.
N.O. Mamabolo
Acting Judge of the Labour Court of South Africa