THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no. JA 111/2024
In the matter between:
NUMSA obo MEMBERS AS PER
ANNEXURE Appellant
and
MACSTEEL SERVICE CENTRES
SOUTH AFRICA (PTY) LTD Respondent
Heard: 28 August 2025
Delivered: 14 November 2025
Coram: Basson, Djaje et Tokota AJJA
This judgment was handed down electronically by circulation to the
parties’ representatives by email, published on the Labour Appeal Court
website, and released to SAFLII. The date and time for hand-down is
deemed to be at 10h00 on 14 November 2025.
2
JUDGMENT
TOKOTA AJA
Introduction
[1] The devastating effects of load- shedding imposed by Eskom during 2022
brought about sufferings in many ways including, business financial losses
due to electricity outage and loss of jobs by large numbers of people.
Members of the appel lant did not escape t his calamity . More than 100
employees were dismissed by the respondent based on the alleged
misconduct for participating in an illegal strike. The issue of unfair dismissal
was referred to the Metal and Engineering Industries Bargaining Council ( the
Bargaining Council ) for conciliation but it remained unresolved. The matter
was referred to the court a quo but outside the statutory time limits within
which it should have been referred for adjudication. 1 Condonation application
in this regard was dismissed, thus closing the door for determination of the
merits of the case . This appeal is against that judgment and order with leave
of the court a quo.
Factual background
[2] In order to put a proper perspective of the matter it is neces sary to set out
broadly the chronological events leading to the application f or condonation.
The appellant’s members (the employees), were employed by the respondent
at its Harvey Roofing facility in Vulcania Industrial area. Harvey Roofing
facility in the Vulcania Industrial area was at times hit by the then scourge of
load-shedding. During the second half of 2022 it did not have a facility of a
generator as an alternative means of supplying power.
1 S.191(11)(a) of the Labour Relations Act 66 of 1995 provides: “(11)(a) The referral, in terms of
subsection (5)(b), of a dispute to the Labour Court for adjudication must be made within 90 days after
the council or (as the case may be) the commissioner has certified that the dispute remains
unresolved.
3
[3] As a result of the impact of the load-shedding, the respondent considered it
wise to implement short time and consequent change to starting and stopping
times at the plant. On 23 September 2022 the employees at Harvey Roof ing
facility were invited to a meeting scheduled to take place at the canteen. At
that meeting a discussion ensued about resolving the financial problems
brought about by the load- shedding. Proposal by the respondent for
alternative working time was rejected by the employees.
[4] After all the negotiations between the appellant and the respondent regarding
respondent’s proposal had failed, management called a meeting on 17
February 2023 followed by another one on 20 February 2023 where the
appellant was informed that since no agreement could be reached,
respondent had decided to determine the working hours and implement short
time on a regular basis. For this decision, it alleged that it was relying on a
clause in the Main Collective Agreement which it alleged authorised it to do
so.
[5] Subsequent to the decision which was taken by the management , 33
employees refused to work according to the revised working time schedule.
The employees who refused to work according to the revised time frames
were warned, both verbally and in writing, that they would face disciplinary
charges of misconduct.
[6] Subsequent to the threat of disciplinary process the employees embarked
upon work stoppage. O n 6 March 2023 the appellant, on behalf of the
employees, referred a dispute relating to a unilateral change to terms and
conditions of employment to the Bargaining Council for conciliation.
[7] Prior to the commencement of the allege d unprotected strike which led to
dismissal of the employees, there was a notice by the appellant of the
impending strike, pursuant to the demands to revert back to working hours as
before.
[8] On 14 March 2023 the employees were issued with notices to attend a
before.
[8] On 14 March 2023 the employees were issued with notices to attend a
disciplinary inquiry scheduled for hearing on 16 March 2023. The first group
consisting of 33 employees were charged with misconduct on two counts;
4
first, with participating in an illegal and unprotected work stoppage, having
failed to resume their duties on 13 March 2023; and, second, with
insubordination, having failed to carry out a reasonable and lawful instruction
and leaving their work stations without permission. The second group of 72
employees were charged with participating in an illegal and unprotected work
stoppage.
[9] About 105 employees did not attend the disciplinary inquiry. There is a
dispute between the parties as to the reason for non- attendance. The
appellant alleges that its members were blocked and prevented by security
from attending the hearings. The respondent alleges that the appellant’s
members refused to attend the hearings electing to gather in the street
outside Harvey Roofing where they danced, sang and toy -toyed. The
disciplinary process continued in their absence and were found guilty . On 17
March 2023 they were dismissed. NUMSA shop stewards were subsequently
dismissed in their absence on 24 March 2023.
[10] On 17 March 2023 appellant referred a dispute of unfair labour practice
relating to unilateral change of conditions of employment. On the same day
the commissioner issued a ruling that the parties were directed to meet on 22
March 2023 to finalise picketing rules failing which such rules would be
imposed by the Bargaining Council.
[11] Regarding the referral, the respondent took a point that the dispute was moot
in that the 33 employees had been dismissed on 17 March 2023.
[12] On 24 March 2023 appellant’s attorneys, Cheadle Thompson Haysom
Incorporated (CTH ) addressed a letter to the respondent making certain
proposals towards the res olution of the dismissal dispute. In summary, CTH
set out in detail the events that led to the strike. They highlighted the areas of
dispute including the question of whether the employer had violated the terms
and conditions of employment and whether it had a right to unilaterally change
and conditions of employment and whether it had a right to unilaterally change
same. They then proposed that the matter be referred to private arbitrator for
mediation at the cost s to be shared by the parties. They cautioned against
5
court litigation lamenting that such a move would take three to four years to
resolve the issues.
[13] On 13 April 2023 appellant, on behalf of its members, referred the dispute of
automatically unfair dismissal to the Bargaining Council for conciliation. On 28
April 2023 the dispute was conciliated, and it remained unresolved and a
certificate to that effect was issued.
[14] On 14 April 2023 appellant referred the unfair dismissal of the Shop stewards
to the Bargaining Council. On 12 May 2023 a certificate of non- resolution was
issued.
[15] On 18 April 2023 the respondent, on an urgent basis, launched an application,
in the Labour C ourt, for a declaratory order that the strike was illegal and
unprotected and simultaneously seeking an order interdicting and restraining
the employees from participating in the strike. On 28 April 2023 an interim
interdict was granted by the Labour Court.
[16] On 28 April 2023 after the dispute of unfair dismissal remained unresolved,
the appellant referred the dispute to arbitration. The respondent took a point in
limine that the Bargaining council had no jurisdiction. On 19 June 2023 the
Commissioner ruled that the Bargaining Council did not have jurisdiction to
adjudicate on the matter.
[17] On 20 June 2023 t he appellant received the arbitrator’s ruling and
immediately emailed the same to appellant’s legal department for attention.
The legal department instructed CTH to advise on what steps to be taken to
challenge the ruling.
[18] CTH was supposed to have filed a statement of claim in the Labour Court .
Due to a dispute of fees between CTH and appellant the statement of claim
was not filed on time . On 24 July 2023 as the appellant realised that the
matter was being delayed, it instructed CN Phukubje attorneys to deal with
the matter.
6
[19] Phukubje attorneys set up a consultation for 27 July 2023. At the consultation
Phukubje requested certain documents , in particular minutes of the meetings
of 6,7 and 9 March 2023 and the appellant was not in possession thereof . Mr
Nkabinde, an official of the appellant , sent an email on the same day to the
respondent requesting the said documents. The respondent replied that such
minutes did not exist, as none were recorded at the meetings . On 1 August
2023 Mr Mkoko of the appe llant reconstructed the m inutes and circulated
them for verification.
[20] On 16 August 2023 Phukubje attorneys were furnished with the final version
of the minutes at a meeting with the General Secretary of the appellant. It was
at that meeting that Phukubje advised appellant that their office did not have
the capacity to handle the matter and that they were withd rawing as attorneys
of the appellant. On the same day, Serfontein, Viljoen & Swart Attorneys were
instructed to take over the matter.
[21] The new attorneys arranged a consultation which was held on 28 August
2023. They also needed further documents. Ultimately the statement of claim
was drafted on 4 September 2023 and finalised on 11 September 2023. It was
filed on 13 September 2023. It is common cause between the parties that the
due date for the filing thereof was 28 July 2023. However, none of the parties
have referred to the dispute of the shop S tewards which only remained
unresolved on 12 May 2023.
[22] The appellant brought an application for condonation for the late filing of the
statement of claim. The respondent opposed the application for condonation.
The Labour Court dismissed the application but granted leave to appeal to
this Court.
The Labour Court
[23] When the Labour Court considered the condonation application it divided the
delay periods in to two segments. The first being the period within the 90- day
period up to 24 July 2023, and the second being the period from 24 July to 13
period up to 24 July 2023, and the second being the period from 24 July to 13
September 2023. The Labour Court went ahead and considered the second
period first and concluded that there was adequate explanation for this period
7
and for that reason the appellant could not be criticised. It held that the
appellant dealt with such a complicated matter with some expedition and also
ensured that the condonation application was delivered prompt ly. It then
considered the fir st period prior to 24 July 2023 and came to the conclusion
that there was no explanation for the delay during that period.
[24] The Labour C ourt held that the delay in referring the matter to c ourt for
adjudication was caused solely by the appellant’s shift in position that this was
a case of a ‘misconduct dismissal.’ It found that had this shift not occurred the
matter would have been referred to c ourt on time. It then held that appellant
had a duty to proffer a full explanation for this period. It held that appellant
provided ‘no explanation at all’. It then concluded that in the absence of such
an explanation it was ‘not obliged to consider prospects of success’.
[25] The Labour C ourt held that it appreciated “ that the prejudice to the individual
applicants if condonation is not granted, is significant ”, although, the lack of
prospects of success ameliorates this somewhat. It held that the respondent
had not alleged any specific prejudice other than that its right to expedit ious
resolution of this dispute has been compromised. It then dismissed the
application for condonation with no order as to costs.
Parties’ contentions.
[26] Counsel for t he appellant contended that the Labour Court failed to exercise
its discretion judicio usly. He contended that the Labour Court failed to
determine whether or not it was in the interests of justice to grant
condonation. The Labour Court erred, so the argument went, in limiting its
assessment of the delay to the period prior to the period of the expiry of a 90 -
day period. He submitted that the Labour Court erred in finding that it was not
obliged to consider the prospects of success regard being had to the fact that
obliged to consider the prospects of success regard being had to the fact that
respondent presented no facts to dispute appellant’s alternative claim. He
contended that there are indeed prospects of success relating to substantive
and procedural fairness of the dismissals. He submitted that the delay was
adequately explained and it was not excessive.
8
[27] Counsel further submitted that the Labour Court erred and misdirected itself in
dismissing the condonation application, especially after having found that
there was adequate explanation for the period after the date on which the
statement of claim was due, and, only based its finding on the inadequate
explanation of the period when the statement of claim was not due. He
submitted that in any event there was adequate explanation f or the first
period. He referred us to the case of Ditsoane v ACWA Power Africa Holdings
(Pty) Ltd
2 where the Constitutional Court said:
‘The Labour Court’s misdirection on delay so tainted its assessment of the
matter that we are entitled to consider the matter afresh. Given that the
withdrawal of the case was unintended and unauthorised and that the
applicant was not responsible for the ensuing delay, it would be most unjust
to bar her from proceeding with her case. Insofar as prospects of success are
concerned, on the applicant’s version there was virtually no consultation prior
to her retrenchment. She also attacks the retrenchment decision on its merits.
The respondent has not sought to persuade us that revival should be refused
because of poor prospects. The respondent has also not sought to establish
trial prejudice.’
3
[28] Counsel for the respondent submitted that the Labour Court was correct in its
judgment and had exercised its discretion judiciously. He contended that the
original 90-day period was relevant in assessing the delay. He relied heavily
on Chasi v University of Johannesburg 4, Matoto v Free State Gambling and
Liquor Authority and Others 5 and some unreported Labour Court judgments. 6
He therefore submitted that the Labour Court was entitled to have regard to
the period prior to the due date of filing the statement of claim.
2 Ditsoane v ACWA Power Africa Holdings (Pty) Ltd (CCT107/23) 2024 (3) BCLR 307 (CC); (2024)
45 ILJ 467 (CC) (12 December 2023) at para 40.
45 ILJ 467 (CC) (12 December 2023) at para 40.
3 See also: Minister of Justice and Correctional Services and Another v Nene (JA129/23) [2024]
ZALAC 30; [2024] 9 BLLR 926 (LAC); (2024) 45 ILJ 2516 (LAC) (13 Jue 2024) at para 10.
4 (J 1747 / 2018) [2022] ZALCJHB 275 (3 October 2022) at para 66.
5 (4629/2015) [2017] ZAFSHC 80 (8 June 2017).
6 Association of Mineworkers and Construction Union (AMCU) and Another v Black Rox Security
Intelligence Services ta BOSASA Security (Pty) Ltd (in Liquidation) and Others ( D1780/17) [2024]
ZALCD 50 (12 December 2024); General Industries Workers Union of South Africa and Others v Mawer and
Delport (Pty) Ltd obo Golden Grove Body Corporate (JS 667/21) [2022] ZALCJHB 139 (9 June 2022).
9
[29] Counsel further subm itted that notwithstanding the Labour Court’s statement
that it did not have to consider the merits, it indeed considered the merits and
found that the are no prospects of success.
[30] Counsel for the appellant submitted that the case of Matoto on which reliance
was placed for consideration of the period prior to the expiry of the statutory
limited period, dealt with a review in terms of the Promotion of Administrative
Justice Act7 (PAJA). PAJA emphasises unreasonable delay on reviews which
is not the case with s ection 191 of the Labour Relations Act 8 (LRA). He
persisted that the merits relating to the prospects of success were never
considered by the Labour Court.
Analysis of the legal framework and facts
[31] In terms section 191( 11) (b) of the LRA the Labour Court may condone non -
observance of the timeframes referred to in sub- section (a) on good cause
shown. It is clear from the above that when dealing with an applicat ion for
condonation the Labour C ourt exercises its discretion. An appeal C ourt will,
depending on the nature on the discretion, act with restraint and will not lightly
interfere with that discretion even if in its own view it would have exercised it
otherwise.
[32] There are two types of discretions, namely a discretion in the narrow sense
and a true discretion or a discretion in a wider sense. In those cases, where
the word “ discretion” is used in a “ non-strict” sense, t he principle that an
appellate Court does not interfere lightly with the exercise of a discretion by a
lower Court does not apply. In such a case the Court of appeal is entitled to
come to its own decision in accordance with its own view of the merits of the
case.
[33] In the case of a narrow discretion – that is a situation where the tribunal or
Court has available to it a number of courses from which to choose – its
decision can only be interfered with by a Court of appeal on very limited
grounds such as where the tribunal or Court:
grounds such as where the tribunal or Court:
7 Act 3 of 2000.
8 Act 66 of 1995, as amended.
10
33.1 did not exercise a judicial discretion or;
33.2 exercised its discretion capriciously or;
33.3 exercised its discretion upon a wrong principle or;
33.4 has not brought its unbiased judgment to bear on the question or;
33.5 has not acted for substantial reasons; 9
33.6 has misconducted itself on the facts10;
33.7 reached a decision in which the result could not reasonably have been
made by a Court properly directing itself to all the relevant facts and
principles.11
[34] Although the principle is that the exercise of a true discretion by a Court of
first instance or by a tribunal can only be interfered with by an Appeal Court
on limited grounds, the list of those grounds on which interference is
permissible is not so short any more as can be seen above. A true
discretionary power was described as being characterised by the fact that a
number of courses are available to the repository of the power.
12
[35] In line with the authority of Ditsoane 13 if the Labour Court’s misdirection on
delay has tainted i ts assessment of the matter , this C ourt is entitled to
consider the matter afresh. I am of the view that the Labour Court misdirected
itself in many respects as will be demonstrate below. This Court is therefore
entitled to consider the matter afresh.
9 See: Ex Parte Neethling and others 1951 (4) SA 331 (A) at p 335.
10 See: National Coalition for Gay and Lesbian Equality and others v Minister of Home Affairs and
others 2000 (2) SA 1 (CC) para 11;
11 See: R v Zackey 1945 AD 505 at 511-2; Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398-9; and
Myburgh Transport v Botha t/a S A Truck Bodies 1991 (3) SA 310 (NmSC) at 314 H- 315 A.
12 Kemp t/a Centralmed v Rawlins (JA 11/06) [2009] ZALAC 8; [2009] 11 BLLR 1027 (LAC); (2009) 30
ILJ 2677 (LAC) at para 13.
13 Id fn 2.
11
[36] It is by now well established that condonation of the non- observance of the
Rules of Court is not a mere formality. 14 Although the condonation in this
matter relates to statutory non-compliance the same principle should apply. In
all cases some acceptable explanation for any delay in seeking condonation,
must be given.
[37] More than five decades ago the case of Melane v Santam Insurance Co Ltd15
still makes good law where the Court said:
'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 of lateness, the explanation thereof,
the prospects of success and the importance of the case. Ordinarily these
facts are interrelated, they are not individually decisive, save of course that if
there are no prospects of success there would be no point in granting
condonation.'
[38] Regarding the latter part of this quotation this is no longer the position. Cases
which consider the delay in isolation and decide the case of the application for
condonation without regard to the prospects of success
16 must be regarded
as having been overruled by the Constitutional Court.17
[39] In the context of a review, as regards unreasonable delay in Gqwetha v
Transkei Development Corporation Ltd 18,following the earlier decisions like
Wolgroeiers Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad 19, it was
stated that a plea of undue delay in bringing a review application by an state
organ is assessed by examining: (1) whether, on the facts, the delay is
14 See: Meintjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 263H -264B; Saloojee and
another NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138E-F; Turnbull-Jackson
v Hibiscus Coast Municipality and others 2014 (6) SA 592 (CC)at para 26.
15 1962 (4) SA 531 (A) 532C-E.
15 1962 (4) SA 531 (A) 532C-E.
16 NUMSA and another v Hillside Aluminium [2005] 6 BLLR 601 (LC).
17 See: Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty) Limited and Others
v Road Traffic Management Corporation and Others 2018 (9) BCLR 1067 (CC); Buffalo City
Metropolitan Municipality v Asla Construction (Pty) Limited 2019 (6) BCLR 661 (CC) at paras 39 and
40. (Buffalo City)
18 2006 (2) SA 603 (SCA).
19 1978 (1) SA 13 (A) at 41 E-F:
12
unreasonable or undue; and, if so (2) whether the court should exercise its
discretion to overlook the delay and nevertheless entertain the application.20
[40] In Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty)
Limited and Others v Road Traffic Management Corporation and Others 21 the
Constitutional Court expressed the view that the explanation that was
proffered by the department for the delay of five years in bringing the counter -
application of the review of its decision was not convincing. Khampepe J
described it as follows22:
‘The explanation provided by the Department was both porous and lacked the
markings of good constitutional citizenship. But this is not the end of the
inquiry. The delay cannot be “evaluated in a vacuum .” It must now be
determined whether there are sound reasons for overlooking the delay.’
[Emphasis added]
[41] In Road Accident Fund and Another v Mdeyide23 it was said:
‘This court has repeatedly emphasised the vital role time limits play in
bringing certainty and stability to social and legal affairs, and maintaining the
quality of adjudication. Without prescription periods, legal disputes would
have the potential to be drawn out for indefinite periods of time, bringing
about prolonged uncertainty to the parties to the dispute. The quality of
adjudication by courts is likely to suffer as time passes, because evidence
may have become lost, witnesses may no longe r be available to testify, or
their recollection of events may have faded. The quality of adjudication is
central to the rule of law. For the law to be respected, decisions of courts
must be given as soon as possible after the events giving rise to disputes,
and must follow from sound reasoning, based on the best available
evidence.'
24
[42] It is correct, as the Labour Court held , that when an application for
condonation for the delay is considered, a full explanation that covers the
condonation for the delay is considered, a full explanation that covers the
20 Khumalo v Member of the Executive Council for Education: KwaZulu Natal [2013] ZACC 49; 2014
(3) BCLR 333 (CC); 2014 (5) SA 579 (CC) at para 49.
21 2018 (9) BCLR 1067 (CC) at para 158.
22 Ibid at para 159.
23 2011 (2) SA 26 (CC) at para 8.
24 See also: Mohlomi v Minister of Defence (CCT41/95) [1996] ZACC 20; 1996 (12) BCLR 1559; 1997
(1) SA 124 at para 11.
13
“entire period” must be provided. 25In Khumalo and Another v M EC for
Education, KwaZulu- Natal26, the Constitutional Court emphasised that an
important consideration in assessing whether a delay should be overlooked is
the nature of the decision. This was said to require, “analysing the impugned
decision within the legal challenge made against it and considering the merits
of that challenge.
[43] The Labour Court first dealt with the second stage and it was at that stage
that it found that Phukubje attorneys were to be criticised because they
contributed to the delay by taking the matter knowing that they did not have
the capacity to deal with it. It must be noted that Phukubje attorneys started
to deal with the matter on 24 July which was during the first stage.
[44] The Labour Court found that the delay was not triv ial but it was not inordinate
and described it as ‘ significant’. It found that there was no explanation at all
for the first pe riod withi n the 90- day period. With respect, in my view the
Labour Court erred in this regard and I deal with the matter on the assumption
that the period within the 90- day period needed explanation for the delay .
However, I express no view whether this is so.
[45] Appellant explained that before the dismissals of the S hop stewards , CTH
was instructed to advise on the matter hence they addressed a letter to the
respondent on 24 March 2023 proposing resolution to the problem stating that
an outcome of the Court may be ‘ruinous’.
[46] It appears further that CHT were at all times acting for the appellant in the
matter until after the ruling of 19 t June 2023 when there was a fee dispute
between them and appellant. This resulted in the statement not being filed on
time.
[47] On 20 June the ruling was received by the appellant and it was immediately
forwarded to one Dakumbheka, an official of the appellant, for attention. On
25See: Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus
25See: Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus
Curiae) 2008 (2) SA 472 (CC) at para 22; Laerskool Generaal Hendrik Schoeman v Bastian Financial
Services (Pty) Ltd 2012 (2) SA 637 (CC) at para 15; SA Express Ltd v Bagport (Pty) Ltd 2020 (5) SA
404 (SCA) at para 34.
262014 (5) SA 579 (CC) at para 57. See also Gqwetha v Transkei Development Corporation Ltd and
others 2006 (2) SA 603 (SCA) at para 33.
14
the same day , Dukumbheka forwarded the same to Mr Nkabinde requesting
the leadership to authoris e a challenge of the ruling in c ourt. On the same
day, Mr Nkabinde requested the national legal department to bring an urgent
application in c ourt challenging the ruling . On 24 July one Ms Prudence
Gqoba forwarded the matter to P hukubje attorneys instructing them to deal
with the matter.
[48] From the above it is clear that, at all relevant times the appellant believed that
this was a matter for arbitration after it remained unresolved. Therefore, as
Counsel for the appellant pointed out , for the period between 28 April and 20
June, appellant was waiting for the outcome of the arbitration. I agree. Regard
being had to the events of this matter , namely the charges of misconduct of
insubordination against 33 employees , the referral of unfair dismissals of the
shop stewards, this is not unreasonable. The referral of the Shop stewards ’
matter was on 13 April 2023 and the certificate of non- resolution was issued
on 12 May 2023. There was also a referral of unfair labour practice relating to
unilateral change of conditions of employment. These referrals could easily
have caused confusion.
[49] The only period which remained unexplained was a period between 20 June
and 24 July when new attorneys were instructed to handle the matter after
breaking up with CHT. The explanation for the period between 24 July and 27
July was accepted as satisfactory by the Labour Court though it criticised
Phukubje attorneys for their conduct. Consequently, the unexplained period is
less than a month and in my opinion cannot be described as excessive.
[50] One must bear in mind that the delay in Tasima 27 was five years and there
was no satisfactory explanation but the Constitutional Court considered it
prudent to entertain the counter -application review on the basis of the
interests of justice.
[51] In considering the delay the Labour Court ought to have considered first, the
[51] In considering the delay the Labour Court ought to have considered first, the
nature of the impugned decision and then the conduct of the appellant.
28 The
27 Id fn 22.
28 Buffalo City (id fn 18) at para 82.
15
Labour Court made no reference to the nature of the impugned decision or
the conduct of the appellant.
[52] It has been held in Tasima that ‘[e]ven where the functionary has not acted as
a model litigant or “constitutional citizen”, 29 there may be a basis to overlook
the delay if the functionary acted in good faith or with the intent to ensure
clean governance. In Tasima , Khampepe J affirmed this principle and said:
‘Merafong also holds that whether the failure to challenge the decision
timeously was made in good faith may be a reason for overlooking delay’.30
[53] In my view the need for the explanation of the entire period cannot be
interpreted as requiring explanation of each and every step taken on each and
every day. One must bear in mind that there is a difference between dealing
with a big organisation like NUMSA and an individual and furthermore there
are week-ends and public holidays in almost every month. In this matter I am
convinced that the appellant acted in good faith and the delay ought to have
been condoned.
[54] In the circumstances even if the Labour Court was correct in considering the
period within the 90- day period as requiring an explanation for the delay, that
period has been explained satisfactorily in my view.
[55] In any event, I agree with Counsel for the appellant that the 90- day period
within which the referral to Court must be made is distinguishable from the
time limit set for the reviews by PAJA. In terms of the PAJA the institution of a
review must be brought “ without unreasonable delay ” and in any event “ not
later than 180 days” a fter the date of becoming aware of the impugned
decision.
[56] The distinction between the statutory limit of 90-day period and a PAJA review
is clear. In terms of s ection 7 of PAJA a review must be instituted without
unreasonable delay. Therefore, reasonableness or otherwise of the delay
commences once a party becomes aware of the impugned decision. The
29 Id fn 22 at para 159.
commences once a party becomes aware of the impugned decision. The
29 Id fn 22 at para 159.
30 Tasima (Id fn 22) at para 168.
16
delay is not postponed until after the expiry of 180 days. Instead once 180
days have elapsed a party is barred from instituting the review proceedings
unless condonation has been granted by the Court . This is not the case in
terms of section 191 of the LRA.
[57] Moreover, in the PAJA assessments the proverbial clock starts running from
the date that the applicant becomes aware or reasonably ought to have
become aware of the action taken.
31 This is not the case in terms of section
191 of the LRA. Depending on the nature of the impugned decision, the
assessment in PAJA is different because even 60 days can possibly be
regarded as an unreasonable delay. Furthermore, the 180- day period may be
extended by agreement between the parties failing which an application for
extension must be made to Court. There is also no such provision in section
191 of the LRA.
[58] Furthermore, the limitation of the 90-day period in terms s ection 191 of the
LRA does not speak of an unreasonable delay. The section does not provide
that the statement must be filed without unreasonable delay instead it
provides that this must be done within 90 days. Furthermore, there is no
provision for the parties to agree to extend the period of 90 days. Therefore,
Matoto’s decision is distinguishable from the present case.
[59] Apart from the fact that the facts were wrongly analysed, the interests of
justice were never considered by the Labour Court in the exercise of its
discretion for the purposes of granting or refusing condonation. There were
nine employees as mentioned in the statement of claim who were not involved
in the strike by reason of the fact that six of them were at home with the
permission of the respondent, and three of them were on study leave. This
evidence was left unchallenged in the statement of defence. Where a
deponent is under a duty to deny or admit a positive allegation, and elects not
to respond thereto, he must be taken to have accepted the correctness
thereof.32
to respond thereto, he must be taken to have accepted the correctness
thereof.32
31 City of Cape Town v Aurecon South Africa (Pty) Limited 2017 (4) SA 223 (CC); 2017 (6) BCLR 730
(CC) (Aurecon) at para 41. Buffalo City (id fn 18) at para 49.s
32 Makhuva and others v Lukoto Bus Service (Pty) Ltd and others 1987 (3) SA 376 (V) at 386 D-F.
17
[60] The Constitutional C ourt had this to say about consideration of merits in
Buffalo City33 when Theron J said:
‘There is a further basis for interfering with the Supreme Court of Appeal
judgment, one that would ordinarily be sufficient to demonstrate that it is in
the interests of justice for this Court to entertain the appeal. The Supreme
Court of Appeal interfered with the High Court’s finding, among others, on the
ground that it was improper for the High Court to have had regard to the
merits before determining whether the delay ought to be condoned.’
It said: ‘The judgment of the Supreme Court of Appeal predated, by a matter
of some months, the judgment of this Court in Gijima . However, it was made
clear in Tasima I (a PAJA review where this Court found that the explanation
for the delay was not satisfactory) that regard must still be had to the merits in
deciding whether the delay should be condoned. 34 The Supreme Court of
Appeal’s decision in this matter does not align with the jurisprudence of this
Court on this aspect and warrants interference. [Emphasis added]
Prospects of success
[61] The Labour Court held that it was not obliged to consider prospects of
success regard being had to the f act that no explanation for the delay was
forthcoming. In this regard the Labour Court adopted the approach of the
Supreme Court of Appeal (SCA) in Matoto35 where Ponnan JA said that
where there is no satisfactory explanation condonation may be refused
irrespective of whatever the prospects of success are. This is not in line with
judicial precedence of the Constitutional Court.
[62] In addition, if regard is had to the employees who were absent during the
strike but were dismissed nonetheless, their case appears to be unassailable.
It must be remembered that , as pointed out above, on 6 March 2023, and,
prior to the commencement of the allege d unprotected strike which led to
dismissal of the employees, there was a notice by the appellant of the
dismissal of the employees, there was a notice by the appellant of the
33 Id fn 18 at paras 39 and 40.
34 TasimaI n 13 at paras 163-4.
35 Id fn 5 at para 15.
18
impending strike, pursuant to the demands to revert back to working hours as
before. Whether anything turns on this or not to me it really does not make
any difference.
[63] Furthermore, the issue of whether there was a unilateral change of the terms
and conditions of employment and, whether at the disciplinary enquiry the
employees were blocked by the security to enter and participate in the
hearings is still to be determined by the trial Court after the evaluation of
evidence. If it is ultimately found that the version of the appellant is credible
then the employees shall have been denied their rights to a fair labour
practice in terms of section 23 of the Constitution of the Republic of South
Africa, 1996.
Prejudice
[64] Although the Labour Court mentioned that the appellant would suffer
prejudice if condonation was not granted, it did not pertinently deal with this
factor. The prejudice which would be suffered by appellant’s members weighs
heavily against the prejudice to be suffered by the respondent. The
appellant’s members have been deprived of their Constitutional right to fair
labour practice in terms of s ection 23 of the Constitution, and a right to have
their disputes resolved by an independent and impartial tribunal in terms of
section 34 of the Constitution. No reference is made also to the employees
who were either absent at home or on study leave. Those employees, it would
seem to me, have good prospects of success especially with the onus being
on the respondent to justify their dismissals. This is consonant with the dicta
in Khumalo that, ‘ consequences and potential prejudice . . . ought not in
general, favour the Court non-suiting an applicant in the face of the delay’.”36
[65] On th e right of access to court, the Constitutional Court has said in Chief
Lesapo v North West Agricultural Bank and Another:37
“The right of access to court is indeed foundational to the stability of an
orderly society. It ensures the peaceful, regulated and institutionalised
orderly society. It ensures the peaceful, regulated and institutionalised
36 Tasima (Id fn 22) at para 170.
37 2000 (1) SA 409 (CC) at p 418 F – G.
19
mechanisms to resolve disputes, without resorting to self-help. The right of
access to court is a bulwark against vigilantism, and the chaos and anarchy
which it causes. Construed in this context of the rule of law and the principle
against self-help in particular, access to court is indeed of cardinal
importance’.
[66] This Court in City of Johannesburg Metropolitan Municipality and Others v
Independent Municipal and Allied Trade Union and Others 38 per Coppin JA
held:
‘The court a quo erred in dismissing the application because of the delay,
without considering whether, in light of factors such as the right of the parties
in terms of s 34 the Constitution, the importance of the matter, the prospects
of success of the application, the potential prejudice to the parties, including
the consequences of not granting or of granting the relief sought and of not
finalising the application on its merits, it should, nevertheless, entertain the
application, despite the delay, and concluding accordingly.’
This statement is apposite in this matter.
[67] I am o f the view that the Labour Court failed to consider relevant factors in
order to exercise its discretion. It did not consider the nature of the impugned
decision. It was not enough simply to say the employees would be prejudiced
if the condonation is not granted but still go ahead and refuse it. It did not
consider the interests of justice at all .39 On its own version it did not consider
the prospects of success. I cannot agree with Counsel for the respondent that
an interpretation o f its judgment demonstrates that it considered the merits.
Nowhere does the Labour Court discuss the merits of the case. In my view
there is merit in the appeal and it must succeed.
Costs
[68] What remains is a question of costs. In labour matter s it is a well- established
principle that costs do not necessarily follow the result. In considering the
38 (2017) 38 ILJ 2695 (LAC) at para 76.
39 See: Tasima (Id fn 22).
20
award of costs the court must have regard to law and fairness. It is not in the
interests of justice to make an award of costs.
[69] In the result the following order will issue
Order:
1. The appeal is upheld with no order as to costs.
2. The order of the court a quo is set aside and substituted with the
following order;
“1. The application for condonation for the late filing of the
statement of claim by the applicant is granted.
2. There is no order as to costs”
3. The matter is referred back to the Labour Court for trial on the merits to
continue.
___________________
B R Tokota
Djaje AJA concurs
Basson, AJA, dissenting
[70] The issue in this appeal is whether the court a quo exercised its discretion
judicially in refusing condonation for the late filing of the appellants’ statement
of claim. In brief, the court a quo held that there is “virtually” nothing in the
condonation application that explains the delay up to July 2024 when the 90-
day period provided for in section 191(11)(a) of the LRA for the filing of the
statement of claim had expired.
[71] It is accepted that the appellants had to fully explain the entire delay in filing
the statement of claim, which was eventually submitted only on 13 September
2024. For convenience, the Labour Court divided the period of delay into two
stages, each of which required a full, detailed and satisfactory explanation.
21
The first stage covered the 90- day period specified in section 191(11) (a),
ending on 24 July 2023. The second stage extended from 24 July 2023 (in
other words, after the 90-day period expired) to 13 September 2024, when the
statement of claim was finally filed. The Labour Court was satisfied with the
explanation for the delay during the second stage. As a result, this Court does
not need to consider the second stage of the delay.
[72] In my view, the court a quo correctly held that the principal reason for the
failure to refer the strike dismissal dispute within the prescribed period was
NUMSA’s inexplicable change in stance — from its initial and consistent
position that the dismissal was for participation in a strike - to the later
contention that it was for misconduct. This shift in position is not explained,
leading the court a quo to conclude that “[i]t seems incontrovertible that had
this shift in position not occurred, the di spute would have been referred to
Court on time”.
[73] The issue in this appeal is whether the appellants adequately explained the
delay during the first stage.
[74] The majority decision held that there was an adequate explanation for the first
delay and that the court a quo failed to consider all relevant factors and,
accordingly, ought to have granted condonation. It is on this point that I part
ways with the majority's reasoning. Although I agree with the broad exposition
of the facts, I take a different view on whether the refusal of condonation was
exercised judicially, and more particularly, on the finding that the Labour Court
failed to consider relevant factors. In my view, if there is no explanation for the
delay, a court is not required to consider any other factors, such as the
prospects of success.
[75] It is not necessary to give a detailed exposition of the law regarding
condonation, nor of the role of a court on appeal when considering whether a
discretion was exercised judicially. The principles are well established and
discretion was exercised judicially. The principles are well established and
have been affirmed in numerous decisions of this Court and the SCA. A court
considering condonation exercises a true discretion. An appellate court will
not interfere with such a decision merely because it would have reached a
22
different conclusion. Interference is warranted only where it is shown that the
court a quo failed to exercise its discretion judicially, meaning that the court a
quo acted capriciously, applied wrong principles, relied on insubstantial
reasons, committed a misdirection or irregularity, or otherwise exercised its
discretion improperly or unfairly.
40 In short, a court on appeal will only
interfere where wrong facts or principles informed the decision, or where the
decision reached is one which "could not reasonably have been made by a
court properly directing itself to all the relevant facts and principles”.41
[76] Granting condonation must be in the interests of justice. The Constitutional
Court in Steenkamp and others v Edcon Ltd,
42 with approval of the decision in
Grootboom v National Prosecuting Authority and another,43 set out the factors
that must be considered in determining whether it is in the interests of justice
to grant condonation and said the following
44:
“[T]he standard for considering an application for condonation is the interests
of justice. However, the concept ‘interests of justice’ is so elastic that it is not
capable of precise definition. As the two cases demonstrate, it includes: the
nature of the relief sought; the extent and cause of the delay; the effect of the
delay on the administration of justice and other litigants; the reasonableness
of the explanation for the delay; the importance of the issue to be raised in the
intended appeal; and the prospects of success. It is crucial to reiterate that
both Brummer and Van Wyk emphasise that the ultimate determination of
what is in the interests of justice must reflect due regard to all the relevant
factors but it is not necessarily limited to those mentioned above. The
particular circumstances of each case will determine which of these factors
are relevant.
It is now trite that condonation cannot be had for the mere asking. A party
seeking condonation must make out a case entitling it to the court’s
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
40 Aspen Holdings (Pty) Ltd and Another v Phelane and Another [2025] 4 BLLR 409 (LAC) at
para 17.
41 AFMS Group (Pty) Ltd) and Another v Vuyisela Mzukwa and Others. Unreported
judgment. Case no. CA03/2024. Delivered: 26 March 2025 at para 24.
42 (2019) 40 ILJ 1731 (CC).
43 [2013] ZACC 37; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); (2014) 35
ILJ 121 (CC) at para 22.
44 Ibid at paras 22, 23 and 51.
23
explanation for the non- compliance with the rules or court’s directions. Of
great significance, the explanation must be reasonable enough to excuse the
default.
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 delay is
short and there is an unsatisfactory explanation but there are reasonable
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.”
[77] What is in the interests of justice is not, however, a standalone consideration.
All factors must therefore be considered when assessing whether it is in the
interests of justice to grant or refuse condonation. And, as stated in
Grootboom,
45 where the delay is unacceptably excessive and there is no
explanation for it, there may be no need to consider the prospects of success.
If the period of delay is short and the explanation is unsatisfactory, but there
are reasonable prospects of success, condonation should be granted. This
was also confirmed in Colett v Commission for Conciliation, Mediation and
Arbitration and others 46 where this Court held 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 the delay, an application for condonation should be refused. As a general
for the delay, an application for condonation should be refused. As a general
proposition therefore, the various factors are not individually decisive, but
should all be taken into account to conclude as to what is in the interests of
justice:
45 Id fn 46.
46 (2014) 35 ILJ 1948 (LAC) at paras 38 and 39.
24
“[38] There are overwhelming precedents in this court, the Supreme Court
of Appeal and the Constitutional Court for the proposition that where
there is a flagrant or gross failure to comply with the rules of court
condonation may be refused without considering the prospects of
success. In NUM v Council for Mineral Technology it was pointed out
that in considering whether good cause has been shown the well -
known approach adopted in Melane v Santam Insurance Co Ltd 1962
(4) SA 531 (A) at 532C-D should be followed, but —
'[t]here is a further principle which is applied and that is 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 the delay, an application for
condonation should be refused'.
[39] The submission that the court a quo had to consider the prospects of
success irrespective of the unsatisfactory and unacceptable
explanation for the gross and flagrant disregard of the rules is without
merit.”
[78] Despite criticism expressed in the majority judgment regarding decision in
Matoto,47 on the basis that it was decided in the context of PAJA, I am
nonetheless of the view that the SCA’s view is sound in holding that a court
need not consider the prospects of success where there is no explanation for
the delay, and that it is in line with constitutional jurisprudence.
[79] In considering an application for condonation, sight should also not be lost of
one of the fundamental purposes of the LRA, which is the expeditious
47 The Court held: “[14] Whilst the prospects of success may, in general, be an important
consideration - they are by no means decisive. I have not dealt with the appellant's prospects of
success because, in my view, the circumstances of the present case are such that the high court was
entitled to refuse the application for an extension irrespective of the appellant’s prospects of
success. When considering whether to condone a litigant’s failure to comply with the rules, this court
has said, that: (i) in cases of flagrant breaches of the rules, especially where there is no acceptable
explanation therefor, the indulgence of condonation may be refused whatever the merits of the
appeal; (ii) the court is bound to make an assessment of an applicant's prospects of success as one
of the factors relevant to the exercise of its discretion, unless the cumulative effect of the other
relevant factors in the case is such as to render the application for condonation obviously unworthy of
consideration and (iii) this applies even where the blame lies solely with the attorney.”
25
resolution of labour disputes. 48 It is thus important that the entire delay must
be fully explained with sufficient detail to allow a court to exercise its
discretion judicially. It is also settled law that applications for condonation will
be subject to “ strict scrutiny” as pointed out by the Constitutional Court in
Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Ltd
:49
“[188] The Labour Court in Makuse adopted the position that—
“condonation for delays in all labour law litigation is not simply there
for the taking. . . the courts have made it clear that applications for
condonation will be subject to ‘strict scrutiny’, and that the principles of
condonation should be applied on a ‘much stricter’ basis.”
[80] Because the 90-day period provided for in the LRA for the filing of a statement
of claim is generous, there is, in my view, all the more reason that any failure
to comply with that period must be adequately explained.
[81] It is not clear from the papers why NUMSA later changed its position and
characterised the dismissal as one for “misconduct,” rather than as a
dismissal for participation in a strike, considering the overwhelming evidence
that NUMSA had held the view that the individual appellants were dismissed
for participating in a strike. Some of the facts that point to this conclusion are
the following:
81.1 On 7 March 2023, the respondent specifically informed NUMSA that it
regarded the conduct of the employees as constituting an illegal strike
and participation in an unprotected work stoppage. On that date,
Macsteel issued final written warnings to all employees engaged in
unprotected strike action.
81.2 On 10 March 2023, the General Secretary of NUMSA addressed a
letter to the respondent requesting, inter alia, to be provided with “ the
employment contracts of those participating in the strike, including the
48 Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Ltd (2018) 39 ILJ 1213
(CC) at para 187. Toyota SA Motors (Pty) Ltd v CCMA and others (2016) 37 ILJ 313 (CC); CUSA v
Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 at para 62.
49 (2018) 39 ILJ 1213 (CC) at para 188.
26
33 workers whom you intend to issue with notices to attend disciplinary
hearings.” NUMSA thus clearly accepted at that time that the
employees were participating in strike action.
81.3 On 14 March 2023, NUMSA served a strike notice on Macsteel. It is
specifically stated in this notice that “[t]he demand in this strike is that
Macsteel must revert to the working hours, shift, and remuneration
patterns, in place before the changes unilaterally introduced during
August or September last year .” This strike demand is almost identical
to the one that led to the unprotected strike and which commenced on
6 March 2023.
81.4 The unprotected strike continued despite a series of ultimatums. On 14
March 2023, the striking employees were issued with notices to attend
disciplinary inquiries scheduled for 16 March 2023. Although additional
charges were brought against 33 employees, all were charged with
participating in an unprotected strike. When none of the employees
attended the disciplinary hearings, they were dismissed on 24 March
2023.
81.5 On 22 March 2023, NUMSA provided Macsteel with proposed picketing
rules — yet another clear indication that NUMSA was fully aware of the
fact that the individual employees were engaged in strike action
(leaving aside for the moment whether that strike was protected or not).
Simply put, picketing rules arise only in the context of strike- related
activity and serve to ensure the orderly conduct of employees at or
near workplaces during protected industrial action.
50
81.6 On 13 April 2023, Mr Mkoko of NUMSA referred an alleged
automatically unfair dismissal dispute to the MEIBC, describing the
facts giving rise to the dismissal as “ Dismissal for participation in an
alleged unprotected strike”.
50 Picketing rules are regulated by section 69 of the LRA and provides that picketing may be
conducted only in support of a protected strike or in opposition to a lockout.
27
81.7 On 28 April 2023, the Labour Court granted a strike interdict against
NUMSA and its members. Conspicuously absent from the statement of
claim is any reference to the strike interdict. What the existence of the
strike interdict does, however, indicate is that as of 28 April 2023,
NUMSA was aware that the Labour Court had taken the view that the
employees’ conduct constituted an unprotected strike
81.8 On 18 June 2023, the Bargaining Council upheld the jurisdictional point
raised by the respondent that the Bargaining Council lacked jurisdiction
to arbitrate because the reason for the dismissal is participation in
unprotected strike action. By that time the Labour Court had long since
interdicted the unprotected strike.
81.9 Only on 12 September 2023, the statement of claim was served, now
claiming that the appellants were dismissed for strike action.
[82] As previously noted, nowhere in the application for condonation does NUMSA
provide any explanation for its shift from maintaining that the dismissal was for
participation in a strike, to asserting that it was for misconduct (despite the
strike interdict), and then reverting to the original position that the dismissal
was for participation in a strike. This material change in stance calls for a
cogent and satisfactory explanation, yet none was forthcoming.
Conclusion
[83] Given the complete absence of an explanation — let alone an acceptable one
— the court a quo was, in my view, correct in concluding that it was not
obliged to consider the appellants’ prospects of success.
[84] I can therefore find no reason to interfere with the discretion of the court a quo
in refusing condonation. For these reasons, I would have dismissed the
appeal with no order as to costs.
_________________
28
Basson, AJA
APPEARANCES:
For the appellant : Adv. Bester SC
Instructed by Serfontein, Viljoen & Swart
For the Respondent : Adv. P Moll
Instructed by Webber Wentzel