IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case Nr: JR 1659/17
In the matter between:
MORTY RACHABEDI Applicant
and
UNILEVER SOUTH AFRICA (PTY) LTD First Respondent
NATIONAL UNION OF FOOD BEVERAGE WINE SPIRITS
AND ALLIED WORKERS UNION Second Respondent
UNILEVER SITE EMPLOYEE RELATIONS MANAGER
(IR SPECIALIST) Third Respondent
NATIONAL UNION OF FOOD, BEVERAGE, WINE, SPIRITS
AND ALLIED WORKERS UNION’S SECRETARY GENERAL:
MR NQOBILE SHABANGU Fourth Respondent
CCMA: RENE HUYSER Fifth Respondent
MR JUSTICE MPARA (NUFWSAW) Sixth Respondent
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised

____________ ______________
Signature Date

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Heard: 27 February 2025
Delivered: 21 January 2026

JUDGMENT

MILO, AJ
[1] Two condonation applications came before this Court for determination.
[2] First, the applicant brought a condonation application for inter alia the late filing
of a review application in terms of which the applicant seeks that the decision of
the fifth respondent (the Commissioner) be reviewed and set aside, and that the
applicant be reinstated retrospectively into the first respondent’s employ,
alternatively be paid compensation.
[3] Second, the first respondent seeks condonation for the late delivery of (i) its
answering affidavit to the applicant’s condonation application (ii) its notice of
notice of opposition to the applicant’s statement of case and (iii) its notice of
exception to the applicant’s statement of case.
[4] Both condonation applications are opposed.
[5] Although the first respondent initially submitted that its condonation application
need not be determined if the applicant’s condonation failed, the Court
considered it prudent to determine the first respondent’s condonation
application first , as the material contained in the first respondent’s opposing
affidavit is relevant to the assessment of the applicant’s condonation
application. In the interests of justice, after hearing argument on the first
respondent’s condonation application, the Court granted the first respondent’s
application for condonation. Full reasons follow below.

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The papers filed by the applicant
[6] The applicant is unrepresented. On or about 26 and 27 August 2024 he filed a
review application, a statement of case and an application to condone the late
delivery of those documents.
[7] These papers are difficult to follow. They contain repetitions, formatting
inconsistencies, and passages that appear to derive from multiple drafts. In
assessing the matter, the Court has afforded a fair and generous indulgence to
his papers and has attempted, where possible, to extract the essence of his
assertions and claims, in order to do justice to the issues he raises.
[8] Although the notice of motion in the condonation application seeks condonation
for the late filing of the review application it also seeks relief that would
ordinarily feature in the review application itself, such as a claim for
reinstatement alternatively compensation. However, the founding affidavit goes
further. It appears to raise a number of additional and disparate causes of
action. These include allegations that:
8.1 the first respondent failed to adjust his salary grade in accordance with a
recognition agreement, in alleged contravention of that agreement;
8.2 he was unfairly suspended for more than twelve months in the period
prior to his dismissal;
8.3 he was victimised by the first respondent for exercising his rights under
the recognition agreement, and that underpayments to him formed part
of that alleged victimisation; and
8.4 the first respondent placed his life at risk and threatened his safety.
[9] In this regard, t he founding affidavit contains broad references to rumours that
the applicant was perceived as an “agent” of management, to unspecified
threats to his safety, and to a concern that disclosing certain matters might

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affect another case pending before this Court under another case number .
These allegations are framed in general terms and are not elaborated upon.
[10] The statement of case, dated 27 August 2024, is drafted in almost identical
terms to the founding affidavit in the condonation application and repeats these
allegations. Under the heading “prospects of success”, the applicant alleges
that his suspension was procedurally and substantively unfair, and that his
dismissal was procedurally and substantively unfair . The relief he seeks
includes retrospective reinstatement, payment of allegedly outstanding earnings
in terms of the recognition agreement, and more general statements such as
“I’m seeking justice”, “I want my matter to be heard”, and complaints that both
his union and the first respondent victimised him.
[11] The confusion in the papers is compounded by the fact that, although the notice
of motion in the condonation application seeks condonation for the late filing of
the review application, the founding affidavit concludes by stating that the
applicant seeks condonation for the late filing of the statement of case. It is
therefore unclear from the papers whether the applicant seeks condonation for
the review application, the statement of case, or both. The applicant appears to
be attempting to pursue a review of a commissioner’s award upholding a
dismissal as fair, while simultaneously instituting a fresh statement of case in
this Court seeking retrospective reinstatement on the basis that the same
dismissal that he contends was substantively and procedurally unfai r, and
without first having referred that dispute to the Commission for Conciliation,
Mediation and Arbitration ( CCMA) for conciliation. The papers do not explain
how the two processes are intended to coexist, nor how the statement of case
could competently proceed in the face of an extant arbitration award finding the
dismissal to be fair.

dismissal to be fair.
[12] In fairness to the applicant, his condonation application is considered in respect
of both his review application and his statement of case.

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[13] The first respondent, in turn, has delivered an answering affidavit opposing the
applicant’s condonation application, a notice of opposition to the statement of
case, and an exception to the statement of case. As already noted, the first
respondent has also applied for condonation for the late delivery of these
documents.
[14] For purposes of determining the condonation applications, the following salient
facts are either common cause or uncontentious:
14.1 The applicant was dismissed by the first respondent on 16 November
2016 after he had been found guilty of misconduct.
14.2 The applicant referred an unfair dismissal dispute to the CCMA in
respect of his dismissal. The arbitration came before the Commissioner
who specifically records in her award that although the applicant also
complained about an alleged unfair suspension, no suspension dispute
was before her and no findings on the fairness or otherwise of the
suspension were made by the Commissioner.
14.3 In an arbitration award dated 5 April 2017, the Commissioner found that
the applicant’s dismissal was both substantively and procedurally fair.
14.4 On or about 1 August 2017 the applicant approached this Court and
requested that a case number be allocated to him. In that request he
expressly described the nature of his intended application as a “review”
and identified the type of review as one brought in terms of section 145
of the LRA. A review case number (JR1659/17) was duly allocated.
However, notwithstanding having initiated this process, the applicant
took no active steps to prosecute the review for several years thereafter.
14.5 Although the applicant does not specify in his papers the degree of
lateness it was only several years later, on or about 26 and 27 August
2024, that the applicant delivered his review application, statement of
case, and condonation application. This was some seven years and 4

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months after the CCMA found his dismissal to have been fair, and
almost 8 years after he was dismissed by the first respondent.
[15] The legal principles governing applications for condonation are well settled and
require only a brief restatement.
[16] Sections 158(1)(f) and 145(1A) of the Labour Relations Act 1 (LRA) empower
this Court to condone the late filing of any document with, or the late referral of
any dispute or application to, this Court. This Court will only do so on good
cause shown by the applicant. The Court’s discretion in assessing any such
application must naturally be exercised judicially, and only where the applicant
has laid a proper foundation for the indulgence sought.
[17] Condonation is therefore never a mere formality. An applicant must explain the
non-compliance fully and place before the Court material capable of satisfying it
that the non- observance of the time limit should be excused. As the
Constitutional Court held in Grootboom v National Prosecuting Authority and
another2, the explanation must be sufficiently reasonable to persuade the Court
that good cause exists to excuse the non-compliance.
[18] The starting point in the assessment of condonation applications remains the
well-known passage in Melane v Santam Insurance Co Ltd
3, where the
Appellate Division identified the factors ordinarily considered in condonation
applications. These are: the extent of the delay, the explanation proffered, the
prospects of success, the importance of the matter, and the balance of fairness
between the parties. These factors are interrelated and must be weighed
together. None is decisive in isolation, although the absence of prospects of
success will usually render condonation futile.
[19] The principles in Melane have been applied routinely by this Court. For
example, in Academic and Professional Staff Association v Pretorius NO and

1 Act 66 of 1995, as amended.
2 [2014] 1 BLLR 1 (CC).
3 1962 (4) SA 531 (A) at 532C-E.

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Others4 this Court listed the factors commonly considered in condonation
applications as: (i) the extent of the delay; (ii) the explanation for the delay ; (iii)
prospects of success or the existence of a bona fide defence; (iv) the
significance of the matter; (v) the respondent’s interest in finality; (vi)
inconvenience to the Court; and (vii) the general need to avoid unnecessary
delays in the administration of justice.
[20] These factors do not operate as self -standing requirements. They must be
assessed collectively and holistically. The Court’s task is to balance the full set
of considerations in a manner that accords with law and fairness.
[21] The extent of the delay is frequently a decisive consideration. As the period of
non-compliance increases, so too does the obligation on an applicant to furnish
a compelling and comprehensive explanation as this must be for the entire
period of delay . The passage of time also has a bearing on prejudice, the
reliability of evidence, the proper functioning of the dispute- resolution system,
and the broader public interest in the finality of litigation.
[22] It is worth reiterating that a n applicant is required to account for the entire
period of delay. It is not sufficient simply to identify isolated dates or events and
leave the Court to infer how they relate to the delay . As this Court observed in
Chasi v University of Johannesburg
5, the explanation must set out, with
adequate particularity, what occurred throughout the relevant timeframe so that
the Court is properly equipped to assess whether the delay was justified. A
chronology without explained connections with one another and linked to a
reasonable explanation for the delay in its entirety , does not amount to an
acceptable explanation.
[23] Prejudice remains an important aspect of the condonation enquiry and must be
assessed from the perspective of both parties. Applicants often address only

assessed from the perspective of both parties. Applicants often address only
the hardship they say they will suffer if condonation is refused, but that is only

4 (2008) 29 ILJ 318 (LC).
5 (J 1747/18) [2022] ZALCJHB 341 (25 November 2022).

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part of the enquiry. It is incumbent on them to articulate, with sufficient clarity,
not only the prejudice they allege will arise if condonation is declined, but also
why the respondent will not be unfairly disadvantaged if the delay is
overlooked
6. Statutory time periods exist to afford respondents a measure of
finality and certainty; condonation undermines that purpose unless the interests
of justice clearly justify it.
[24] Prospects of success are a relevant part of the enquiry. Although earlier
jurisprudence tended to disregard prospects where the explanation was
inadequate, the Constitutional Court in Steenkamp and Others v Edcon Ltd
7
confirmed that prospects should be factored into the overall assessment. While
hopeless prospects may weigh decisively against condonation, and strong
prospects cannot automatically cure an entirely absent explanation, they
nonetheless form part of the constellation of factors to be weighed.
[25] In Government Printing Works v Public Servants Association 8 the Labour
Appeal Court (LAC) pointed out that p rospects of success ordinarily remain a
relevant part of the analysis and almost always will be considered as one of the
interrelated factors in the overall assessment , even where the explanation for
the delay is not entirely satisfactory. The LAC, however, was careful to note that
this general approach is not without exception. While prospects of success will
ordinarily form part of the overall enquiry, there exists a narrow class of cases
in which the delay is so excessive, and the explanation so wholly lacking so as
to be flagrant and gross , that the merits may be jettisoned
9. However, where
this is the judicial approach taken in a particular matter, this must be carefully
considered and explained. In such circumstances, the interests of justice may in
appropriate cases permit a court to refuse condonation irrespective of the
underlying merits.

6 Balmer and others v Reddam (Bedfordview) (Pty) Ltd (2011) 32 ILJ 2121 (LC)

6 Balmer and others v Reddam (Bedfordview) (Pty) Ltd (2011) 32 ILJ 2121 (LC)
7 [2019] 7 BCLR 826 (CC).
8 [2025] 2 BLLR 112 (LAC).
9 Ibid at para 30.

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[26] In the end, the enquiry is a composite one. All relevant considerations must be
assessed together. A substantial delay may still be overlooked if it is properly
explained and supported by credible prospects of success, while even a matter
of apparent merit may nonetheless fail where the default is serious and remains
unexplained. The balance must ultimately be struck in accordance with fairness
and the interests of justice.
[27] It is against this legal framework that the condonation applications fall to be
determined.
Evaluation
[28] It is common cause that the applicant was dismissed on 16 November 2016
and that the arbitration award upholding his dismissal as substantively and
procedurally fair was issued on 5 April 2017. The applicant does not state when
he received the award, but even on the most generous assumption this would
not materially alter the extraordinary delay between the award and the filing of
his review application and statement of case. It was only on or about 26 and 27
August 2024, some seven years and four months af ter the award, that the
applicant delivered his review application, statement of case and condonation
application.
[29] The applicant does not, in his papers, attempt to calculate the degree of
lateness. On any reckoning, however, the delay is egregious.
[30] The applicant first approached this Court as early as 1 August 2017 to request
a case number for a review application in terms of section 145 of the LRA. A
review case number was duly allocated. He took no further steps to prosecute
the review for more than seven years thereafter. This fact is significant. It
demonstrates that the applicant knew, at an early stage, the proper process to
challenge the arbitration award. His subsequent inaction aggravates the degree
of the delay and weighs heavily against the grant of condonation.

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[31] The applicant has not provided a coherent or satisfactory explanation for the
delay. While he makes reference in his founding affidavit to rumours that he
was perceived as an “agent” of management, unspecified threats to his safety,
and a concern that disclosing certain matters might prejudice another case
pending before this Court, these allegations are not particularised in any
meaningful way . The applicant does not , for instance, say when the alleged
threats occurred, who made them, what form they took, or how they prevented
him from prosecuting his case for a period spanning more than seven years.
[32] During the hearing, the Court expressly invited the applicant to elaborate on
these issues. He was unable to furnish any further detail beyond reiterating the
vague assertions contained in his affidavit. Even on the most generous
interpretation of his papers and oral submissions, these statements do not
constitute a coherent or reasonable explanation for the extraordinary length of
the delay.
[33] In sum, the applicant has not provided a reasonable, comprehensive or credible
explanation for any portion of the delay. The explanation offered is, in
substance, no explanation at all.
[34] In this context , and as mentioned earlier , the LAC reaffirmed that although
prospects of success ordinarily remain a relevant factor in the condonation
enquiry, there are exceptional circumstances where the degree of non-
compliance is so egregious, and the explanation so wholly absent, that the
merits recede entirely. In Government Printing Works
10 the LAC observed:
“There does come a time in any case where a party's disregard for procedure
and delay in pursuing a matter is so extensive that they will be penalised
irrespective of the merits of the case.”
[35] The present matter squarely falls within that category. Here, the delay is so
excessive, the explanation so wholly absent, and the non- compliance so

10 Id fn 8 at para 29.

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flagrant that condonation may properly be refused without regard to the
prospects of success.
[36] In any event, even if prospects of success remained a relevant consideration,
they do not assist the applicant at all . In both his review application and
statement of case, the applicant asserts that his suspension and dismissal were
procedurally and substantively unfair. However:
36.1 Insofar as his review application is concerned, the Commissioner
expressly recorded in her award that no unfair suspension dispute was
before her and she made no findings in that regard. The review of the
Commissioner’s award is therefore confined to her findings that his
dismissal was procedurally and substantively fair. On this score, the
applicant advances no challenges of substance to the Commissioner’s
finings. His papers do not identify any reviewable irregularit y,
misdirection or error of law.
36.2 The statement of case, which mirrors the founding affidavit, does not
improve matters. To the extent that the statement of case seeks
reinstatement, such relief would amount to bypassing both the arbitration
award (which remains extant and valid) and the statutory processes
required to pursue an unfair dismissal claim.
36.3 Insofar as the applicant’s complaint relates to his suspension, he makes
no averment that he referred an unfair suspension dispute to the CCMA
which would be clothed with jurisdiction to determine it.
[37] The applicant also alludes to a claim based on alleged non- compliance with a
recognition agreement in relation to his pay. Any such claim would, on the
applicant’s own version, be several years out of time and has plainly
prescribed, as the first respondent asserts . He provides no factual detail
whatsoever to suggest otherwise.

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[38] In these circumstances, the applicant has not demonstrated any reasonable
prospects of success in the review application, the statement of case or in any
of the causes of action faintly discernible from his papers.
[39] The prejudice to the first respondent should condonation be granted is
considerable. It would be required to defend proceedings relating to a dismissal
that occurred almost eight years prior to the institution of these proceedings . If
condonation were granted and the applicant ultimately succeeded in obtaining
retrospective reinstatement, the first respondent could, through no fault of its
own, face a substantial back -pay liability. It would also incur further legal costs
and inconvenience in circumstances where the delay has been unduly long and
where its ability to defend the matter has been materially compromised.
[40] In this regard, t he first respondent has placed undisputed evidence before the
Court demonstrating the extent of some such prejudice. The industrial relations
specialist who would have been involved in the applicant’s wage negotiations
and disciplinary process and is thus clearly a key witness , has since passed
away. Three other individuals who were involved in the matter are no longer in
the first respondent’s employ. The first respondent has cogently argued that
even if they could be traced and persuaded to testify, their ability to recall the
relevant events accurately would inevitably have been eroded by the passage
of time.
[41] In addition, the first respondent has experienced substantial difficulty locating
records relevant to the applicant’s employment due to a change in its
Information Technology systems in 2020, a difficulty compounded by the
lengthy delay in the institution of these proceedings. The deponent to the first
respondent’s answering affidavit, Mr Ntholeng, explains that he was not
employed by the first respondent at the time of the applicant’s dismissal. In

employed by the first respondent at the time of the applicant’s dismissal. In
addressing the allegations relating to the dismissal, he h as therefore been
compelled to rely solely on such documents as are available to him, including
the arbitration award and the correspondence attached to the applicant’s

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statement of case. This in itself is highly prejudicial and foreshadows the type of
prejudice that will possibly feature even more prominently as the litigation
continues such as, for example, at a trial of the action. This is the type of
practical prejudice that inevitably arises where an employer is called upon to
defend a matter after such an extensive lapse of time.
[42] The applicant, for his part, states that he is currently unemployed and without
income, that the first respondent was his source of livelihood, and that he seeks
justice. He says he has suffered financially and that the matter has caused him
psychological distress. While these concerns are not insignificant, they do not
outweigh the severe prejudice to the first respondent, particularly in
circumstances where the delay is extreme.
[43] Considering all these factors holistically, t he delay in this matter is
extraordinary, and no coherent explanation has been provided for any portion
of it. The applicant’s prospects of success , to the extent that they remain a
relevant consideration in circumstances where the non- compliance is so
flagrant and the explanation so wholly absent , are in any event poor. The first
respondent will suffer significant prejudice if required to defend the matter after
such an extensive lapse of time. No equitable or exceptional circumstances
have been advanced that might justify condonation notwithstanding these
deficiencies. In these circumstances, the interests of justice do not favour the
granting of condonation.
The first respondent’s condonation application
[44] The first respondent sought condonation for the late delivery of three
documents: (i) its notice of opposition to the applicant’s statement of case (17
court days late); (ii) its notice of opposition and answering affidavit to the
applicant’s condonation application (27 court days late); and (iii) its exception (8
court days late). While these delays are not insignificant, they are not
inordinate.

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[45] The explanation for the delays falls into three broad categories: (i) the
disordered and voluminous nature of the applicant’s papers; (ii) a personal
bereavement suffered by the attorney dealing with the matter; and (iii) practical
difficulties in obtaining instructions and preparing a meaningful response in
circumstances where the relevant events occurred many years ago.
[46] On receipt of the applicant’s documentation in late August 2024, the first
respondent forwarded the papers to its attorneys promptly. The documents
were, however, not in any discernible order and it was necessary for the first
respondent’s attorneys to inspect the court file to reconstruct a coherent record
before meaningful instructions could be taken. The applicant does not dispute
this.
[47] The attorney dealing with the matter was then absent due to an unexpected
bereavement. Upon her return, counsel was briefed to assist in settling the
necessary pleadings.
[48] In parallel, the first respondent experienced difficulty locating historical
employment records due to an Information Technology System change in 2020,
a challenge compounded by the lengthy passage of time.
[49] In these circumstances, the first respondent’s explanation adequately accounts
for the periods of delay. The delays have caused the applicant no prejudice,
and the interests of justice favoured granting condonation.
Costs
[50] In terms of section 162 of the LRA, this Court has a discretion to make orders
for costs according to the requirements of law and fairness. The applicant,
although unsuccessful, is unrepresented . In these circumstances, and
notwithstanding the outcome of the condonation applications, I am not
persuaded that a costs order would be appropriate.
[51] In the premises, the following order is made:

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Order
1. The first respondent’s application for condonation is granted.
2. The applicant’s application for condonation is dismissed.
3. The applicant’s review application and statement of case are
consequently dismissed.
4. There is no order as to costs.

___________________
S. Milo
Acting Judge of the Labour Court of South Africa

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Appearances:
For the Applicant : In person
For the First Respondent : Adv Navsa
Instructed by : Norton Rose Fulbright Attorneys