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[2026] ZALCCT 16
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Jansen v South African Local Government Bargaining Council and Others (C57/2024) [2026] ZALCCT 16 (2 February 2026)
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Case
no:
C
57/2024
(1)
Reportable: NO
(2)
Of interest to other Judges: Yes
02
February 2026
In
the matter between:
VENUS
BIANCA JANSEN
First
Applicant
And
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
ORLANDO
MOSES N.O
Second
Respondent
CITY
OF CAPE TOWN METROPOLITAN
MUNICIPALITY
Third
Respondent
Heard
:
21 January 2026
Delivered
:
02 February 2026
JUDGMENT
LAGRANGE, J
Introduction
[1]
The applicant, Ms V Jansen (‘Jansen’) was employed by the
third respondent (‘the City’) as a law
enforcement
officer in the City’s Safety and Security Directorate.
[2]
At a time when she was working unusually long hours while a taxi
strike was in progress, she lost her firearm together
with 34 rounds
of ammunition and two magazines. She was charged and found guilty of
failing to take proper care of the employer’s
assets, of not
reporting the loss timeously to the police, and of not storing her
firearm in the prescribed manner. The misconduct
was viewed in a very
serious light and she was dismissed.
[3]
Jansen referred an unfair dismissal claim to the bargaining council
four days late and applied for condonation. The second
respondent
(‘the arbitrator’) hearing the condonation application,
refused to grant it. Jansen then applied to
review that ruling.
On being advised by the City that the review application was deemed
withdrawn because of delays in filing the
record of the arbitration,
Jansen applied to have the review application reinstated. Later on
she realised that the review application
had not been filed with the
registrar, and she applied for condonation of the late referral.
[4]
In these proceedings the court is therefore required to consider the
reinstatement application and, if the review is reinstated,
the
condonation application. If the matter is reinstated and the
late filing of the review application is condoned, then
merits of the
review of the arbitrator’s condonation ruling will fall to be
considered.
Summary
chronology of events
[5]
Between 20 and 23 March 2023, Jansen lost her
service firearm, ammunition and magazines, and she only reported the
loss on 23 March
2023. Other than attributing the loss to her alleged
diminished mental capacity owing to the overtime she was working she
offered
no explanation of where she might have lost it.
[6]
On 10 October 2023, Jansen was dismissed by
the City of Cape Town following the disciplinary proceedings. Her
internal appeal against
the findings and the sanction was dismissed
and the dismissal was confirmed on 6 December 2023.
[7]
Jansen received the internal appeal outcome
the same day it was handed down. On an unspecified date between then
and 4 January 2024,
she claims she approached her union, but it
declined to assist her in referring an unfair dismissal case.
She claimed she
then approached her ‘legal representative’
on 4 January 2024, who advised her that the 30-day period for making
the
referral would expire on 6 January 2024, but the bargaining
council “could be closed” over the festive period.
Nonetheless,
she claims to have been advised that if she referred the
dispute by 8 January it would not be substantially late. As the
arbitrator
correctly noted, the 30-day period expired on 5 January.
[8]
On 8 January 2024 Jansen returned to her
legal advisor and the referral was made on 9 January together with a
brief condonation
application.
[9]
On 25 January 2024, the arbitrator
dismissed her condonation application. The arbitrator did not
consider it necessary to consider
the merits of the dismissal. The
arbitrator accepted Jansen’s account of the steps she took in
January 2024. However, the
arbitrator took a very dim view of the
fact that both Jansen and her legal advisor were aware that the
referral deadline was about
to expire but simply decided no harm
would be done submitting it a few days later. The arbitrator
concluded that the explanation
for the delay was unreasonable and, in
the light of jurisprudential authority, it was unnecessary to
consider the prospects of
success in the review application.
[10]
On 20 February 2024, Jansen served the
Labour Court review application on the City but apparently failed to
file the original application
with the Labour Court.
[11]
On 23 February 2024, the Registrar issued a
Rule 7A(5) notice, which ought to have been conveyed to Jansen’s
attorneys, informing
them that the record had been filed by the
bargaining council, and they were required to uplift it by 5 March
2024, and to file
it by 23 May 2024. Jansen’s attorneys deny
receiving the registrar’s notice. In the court file there is a
Rule 7A(5)
notice addressed to her attorneys, but there is no
document evidencing in what manner, if any, it was transmitted to
them.
[12]
In the circumstances it is not surprising
that Jansen failed to uplift the record by the initial deadline
imposed in the Rule 7A(5)
notice and likewise failed to file the
review record within the 60 day period prescribed by Rule 7A(6).
[13]
Notwithstanding this, on 4 June 2024,
Jansen’s counsel drafted a Rule 7A(8)(b) notice, mistakenly but
not unreasonably believing
that the record had been filed because it
consisted solely of the documentary record, as the ruling was
determined on the papers
without an oral hearing.
[14]
For reasons which are not explained, it was
only on 2 July 2024, nearly a month later, that this Rule 7A(8)(b)
notice was served.
[15]
About a week after receiving the notice, on
8 July 2024, the City advised Jansen’s attorneys that the
60-day deadline for
filing the record expired on 23 May 2024 and, in
the absence of doing so, the Rule 7A(8) notice was premature and was
an irregular
step. Their letter pertinently called on her attorneys
to rectify the situation. They also advised that the review
application
was accordingly deemed withdrawn in terms of clause
11.2.3 of the Labour Court Practice manual (‘the manual’)
and would
require an application to reinstate it under clause 16.2
thereof, which the City would oppose.
[16]
On 16 July 2024, out of excessive caution,
the City nevertheless delivered its answering affidavit in the review
application, raising
Jansen’s failures to comply with Rules
7A(6) and 7A(8) as
in limine
issues.
The City also reiterated its submissions that the review application
was deemed withdrawn by virtue of her failure to file
the record
within 60 days from the date of the 7A(5) notice.
[17]
In response, on 30 July 2024, Jansen
launched a retrieval application seeking, among other things,
reinstatement of the review application
and condonation for her
non compliance. It is important to stress that the founding
affidavit in this application seeks to
explain why it was only after
8 July 2024 that her attorneys only became aware that the review
application had not been filed with
the registrar.
[18]
Further, they claimed that until the letter
from the City’s attorneys on 8 July alerted them to the fact
that the record also
had not been filed, they were unaware of the
registrar’s Rule 7A(5) notice. However, other than noting this,
no explanation
is offered why the record had still not been filed
despite knowing, at the very latest, from 8 July that it had not been
done,
and despite the fact that the record consisted entirely of the
documentary record.
[19]
Jansen’s attorneys rectified their
apparent omission to file the review application papers with the
registrar, by filing them
on 2 August 2024, 25 days after becoming
aware that they had not previously been filed.
[20]
The City filed its answering affidavit in
the retrieval application on 16 August 2024, in which it raised
additional procedural
defects. In particular, it highlighted the fact
that the retrieval application was launched despite the record still
not having
been filed, meaning that the very reason which gave rise
to the review application being deemed withdrawn had still not been
remedied.
[21]
It was only on 14 October 2024, nearly two
months later, that Jansen eventually filed the review record, which
by now was 98 court
days late with reference to registrar’s
Rule 7A(5) notice, or 68 court days since she received a copy of the
registrar’s
notice from the City on being informed of her
non compliance on 8 July 2024. No application seeking
condonation for the late
filing of the record accompanied the record.
[22]
Nearly another two months passed before
Jansen launched her application on 11 December 2024, seeking
condonation for the late filing
of the review application with the
registrar. However, in her founding affidavit she sought wider
relief, namely that her failure
to comply with Rule 7A(6) in failing
to deliver the record should also be condoned. Somewhat confusingly,
the failure to file the
record was described as “
resulting
in the Registrar not serving the Applicant with the Rule 7A(5)
notice
”. Obviously, this could
not be the case, because the issuing of the Rule 7A(5) notice
precedes the upliftment and filing
of the record. In addition, she
prayed that the review application should be placed back on the roll
if it was deemed withdrawn
even though she did not receive the Rule
7A(5) notice from the registrar.
[23]
The City delivered its answering affidavit
in the condonation application on 24 January 2025, raising several
preliminary objections
including non compliance with the
Commissioners of Oaths Act, the absence of appropriate confirmatory
affidavits, and that
it was a repetition of the retrieval application
launched on 30 July 2024. It seeks the dismissal of this application
with a punitive
cost award as it contends it amounts to an abuse of
court.
[24]
On 17 June 2025, Jansen filed a replying
affidavit in the condonation application more than 90 days late. In
response the City lodged
and objection to the late replying
affidavit, but Jansen failed to seek condonation for the late filing
of her affidavit.
[25]
It is apparent from the above that the
progress of Jansen’s review application was fraught with
procedural missteps and unexplained
delays, coupled with a failure to
appreciate the distinct nature of the various interlocutory issues
that had to be dealt with.
Evaluation
The retrieval application
[26]
Before condonation for the late filing of the review application with
the registrar can be considered, the reinstatement
application must
be dealt with. The trigger relied on by the City for deeming the
application withdrawn was the expiry of the 60
day period for filing
the record. The operative provisions of the Labour Court
Practice manual which applied at the time
read
‘
Clause
11.2.2: For the purposes of Rule 7A(6), records must be
filed
within 60 days of the date on which the applicant is advised by the
Registrar that the record has been filed
.
Clause 11.2.3: If the
applicant fails to file a record within the prescribed period, the
applicant will be deemed to have withdrawn
the application…’
(emphasis
added)
[27]
On the available material in court file, it seems the Rule 7A(5) that
was to be served on Jansen’s attorneys was
drawn up by the
registrar’s office but there is no evidence it was transmitted.
The first time her attorneys had knowledge
of the notice was when
they received a copy from the City’s attorneys on 8 July 2024.
The City argued that its transmission
of the notice to her attorneys
should be accepted as equivalent to receiving the notice from the
registrar, in which case the record
was still filed eight court days
out of time.
[28]
A literal
reading of clause 11.2.2, or its successor Rule 37(14)
[1]
,
suggests that the applicant must have received the Rule 7A(5) notice
(currently a Rule 37(9) notice) directly from the registrar.
There is
no case authority I could find which holds that if the relevant
notice is not received directly from the registrar, but
is served
with it by the respondent party, that the applicant can simply ignore
the notice. In my view, it would be an absurd
and unjustifiably
formalistic interpretation of the provisions to suggest that an
applicant who receives a copy of the notice from
the respondent, can
simply decide to ignore it and wait patiently to see if it also
receives another copy directly from the registrar.
What matters is
when the applicant party received it and thereby gained knowledge
that the record was available for upliftment
[2]
.
[29]
In the circumstances, I am willing to accept that Jansen’s
attorneys first became aware the record could be uplifted
on 8 July
2024, even if they should have been more diligent in monitoring the
progress of the review application, which had been
launched four
months earlier. As mentioned, other than pointing out that she was
unaware the record could be uplifted until that
date, no explanation
was provided why she took sixty-eight court days to file it. The lack
of an explanation for this is all the
more baffling in an instance
like this where the record did not require any transcription to be
prepared. There simply is
no explanation provided. It is true
the delay is relatively short, but she needed to explain the reasons
which prevented her from
filing it for 68 court days.
[30]
Can a
consideration of the merits of her case compensate for the absence of
an acceptable explanation for the delay?
In
Grootboom v National Prosecuting Authority & another
[3]
,the
Constitutional Court held:
‘
[51]
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.’
(emphasis added)
[31]
In the
earlier decision of
NUM
v Council for Mineral Technology
[4]
,
the LAC court confirmed the principle that:
“
There
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 prospects of success, no matter how good the explanation
for the delay, an application for condonation should be refused
”
[5]
[32]
It would
appear, considering
Grootboom,
that
the principle in
NUM
v CMT
might no longer be applicable in cases where the explanation is
not acceptable or non-existent but the delay is not excessive
[6]
.
I will assume in favour of the applicant this to be the case and
consider the prospects of success in the review application,
despite
the absence of any explanation for the delay, on the basis that the
eight-day delay is not excessive.
[33]
Jansen wishes to review and set aside the condonation ruling because
of the arbitrator’s alleged failures in his
assessment of the
evidence and on his failure to consider her prospects of success.
[34]
The key evidence before the arbitrator, in summary, was that:
34.1 Jansen
provided no details of when she consulted with her union and when she
was advised it would not assist her.
34.2 There
was no explanation why Jansen and the legal professional she saw
decided that the bargaining council was
probably closed, without
taking any step to verify that, which could easily have been done.
34.3 Knowing
that a referral had to be made by 6 January and that it would be out
of time on 8 January she decided not
to make any attempt to file the
referral before 8 January and then only did so on 9 January, on the
basis it would not be ‘
substantially’
late.
[35]
Jansen had also made submissions why she had prospects of success in
establishing that her dismissal was unfair. Firstly,
she claimed she
was totally exhausted from working excessively long hours which she
said diminished her mental capacity and she
would be able to
substantiate that if she had an opportunity to call a forensic
psychologist as an expert witness, and she claims
the hours she
worked conflicted with the
Basic Conditions of Employment Act 75 of
1997
.
[36]
The arbitrator’s analysis of the poor explanation for the late
referral and his rebuke of Jansen and her legal
advisor for assuming
that she would be entitled to condonation rather than doing what
should have been done to meet the deadline,
cannot be faulted in my
view, even though the delay was short.
[37]
However, in
the case of a review of a condonation ruling, in
National
Education Health and Allied Workers Union (Nehawu) v Metrofile (Pty)
Ltd
[7]
the LAC said:
‘
To grant
condonation is an exercise of judicial discretion that is only
fettered by being judicially explained.
The
test is whether the court whose decision is challenged on appeal has
exercised its discretion judicially
.
The exercise of the discretion will not be judicial if it is based on
incorrect facts or wrong principles of law or where the
court of
first instance acted capriciously, or in a biased manner, or
committed a misdirection or an irregularity, or exercised
its
discretion improperly or unfairly
.
If none of these grounds is established, it cannot be said that the
exercise of discretion was not judicial.
’
[8]
(emphasis
added)
[38]
In this instance, the arbitrator’s decision to simply ignore
the prospects of success when dealing with such a
short delay, is at
odds with
Grootboom
and was a misdirection on his part.
Consequently, he did not exercise his discretion judicially and his
condonation ruling would
have to reconsidered by the court.
[39]
In light of the above reasoning, I believe the review application
must be reinstated, subject to dealing with the late
filing of the
review application with the registrar.
Condonation for the late
filing of the review application
[40]
It is common cause that the City received the review application on
20 February 2024 but omitted to file the original
with the registrar.
This was only done on 2 August 2024 and Jansen applied for
condonation for the delay in December 2024.
[41]
The delay in rectifying the filing oversight was egregious but it
only came to the attention of Jansen’s attorneys
late.
The City was not prejudiced in any way by it. There is no good
reason why this infraction of the rules would
warrant non-suiting the
applicant, in circumstances where the crucial step of serving on the
City was done timeously.
[42]
Accordingly, the late filing of the review application with the court
should be condoned.
The review application
[43]
In the course of the discussion above, the arbitrator’s
findings on the poor explanation for the delay have been
discussed
already. The outstanding question is whether Jansen has demonstrated
she has some reasonable prospect of success in showing
she had been
unfairly dismissed.
[44]
Jansen’s defence does not attempt to address how she could have
unintentionally lost track of a firearm, a considerable
amount of
ammunition and magazines, which together comprise a bulky collection
of items. Her defence completely avoids trying to
give any plausible
explanation how or when it could have happened. Rather it is one that
apparently seeks to absolve herself of
responsibility, in whole or in
part, for not retaining control and possession of the items owing to
her alleged diminished mental
capacity caused by fatigue. Considering
what she testified at her disciplinary enquiry it also entails
complete amnesia on her
part in relation to events which might
explain how the items went missing. Whether or not the overtime she
worked was permissible
or not, in and of itself, is not an additional
defence to the charge.
[45]
In the disciplinary enquiry chairperson’s extensive ruling
which was also part of the evidence placed before the
arbitrator, she
did not even offer a tentative explanation of where the items
might be. The presiding office had noted her
complaint of working
long hours but concluded she had been entitled to refuse to work the
overtime it entailed and noted that she
did not attempt to dispute
the evidence about her unexplained lack of co-operation and
transparency regarding the lost firearm
when dealing with the
investigators. It was common cause that a loss of a firearm is an
extremely serious form of misconduct, not
least because of the fatal
ramifications it could have if it had fallen into the wrong hands.
[46]
On the evidence before the arbitrator, I am not persuaded that
Jansen’s defence based entirely on alleged diminished
mental
capacity arising from working long hours has a reasonable prospect of
success in absolving her of responsibility for such
critical items in
her custody going missing.
[47]
In conclusion, the review application must fail.
Order
1.
The Applicant’s review application is
reinstated.
2.
The late filing of the Applicant’s review
application with the Registrar is condoned.
3.
The review application is dismissed.
4.
No order is made as to costs
R
Lagrange
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
F
Rodriques
Instructed
by:
Steenkamp Abrahams Attorneys Inc.
For the
Respondent:
S Bosch
Instructed
by:
Diale Mogashoa Attorneys
[1]
Rule 37
(14) reads: ‘
Transcribed
records must be delivered within 60 days of the date on which the
applicant is advised by the registrar that the record
has been
received.’
[2]
When
determining the commencement of the six week period for filing a
review application, in terms of
s 145(1)
of the LRA, t is the date
the award is served upon the applicant that is critical.
See e.g.,
Librapac
CC v FEDCRAW & others
(1999)
20
ILJansen
510
(LAC) at paragraph 6.
[3]
(2014) 35
ILJansen
21
(CC)
[4]
[1999] 3 BLLR 209 (LAC)
[5]
At
paragraph 10.
[6]
See
also
Government
Printing Works v Public Service Association & anothe
r
(2025) 46
ILJ
915
(LAC):
‘
[29]
The effect is that an approach which completely ignores the
prospects of success on the merits whenever there is an
unsatisfactory,
unreasonable or unacceptable explanation for a
delay, requires explication. 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. The SCA has confirmed that an assessment of
prospects of success is a relevant factor in the exercise of a
discretion
regarding condonation, 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’. It is in cases of ‘flagrant’,
‘gross’
breaches of the rules, especially in the absence
of an acceptable explanation, that condonation may be refused
regardless of
the merits of the appeal, even where the blame lies
solely with the legal representative. In this court, it has been
acknowledged
that excellent prospects of success lead to the
granting of condonation even when the delay is substantial and the
explanation
inadequate.’
[7]
(2021) 42
ILJansen
914
(LAC)
[8]
At para 10.