About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2026
>>
[2026] ZALCCT 26
|
|
Terry v Commission for Conciliation Mediation and Arbitration and Others (C482/2024) [2026] ZALCCT 26 (9 February 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No:
C
482/2024
(1)
Reportable: NO
(2)
Of interest to other Judges: Yes
09
February 2026
In
the matter between:
MARILYN ROSEMARY
ANN TERRY
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
NOEL HENDRICKS
Second
Respondent
IRON
TREE INTERNET SERVICES (PTY) LTD
Third
Respondent
Heard
:
4 February 20296
Delivered
:
9 February 2026
JUDGMENT
LAGRANGE,
J
Introduction
[1]
This is an application to review and set aside a condonation ruling
issued by the second respondent (‘the arbitrator’)
on 13
August 2024, in which the applicant’s condonation application
for the late referral to the CCMA referral of her alleged
automatically unfair dismissal dispute based on age was dismissed.
The review application itself was only launched only 27 November
2024, approximately 62 days out of time, and the applicant also seeks
condonation for its late filing.
[2]
Accordingly, the Court is required to determine whether the late
filing of the review application ought to be condoned;
and, if so,
whether the arbitrator’s refusal to grant condonation for the
late referral constitutes a reviewable irregularity.
[3]
Some preliminary issues arose which also need to be dealt with,
namely the failure of the applicant to file her heads
of argument
prior to the hearing, and the admission of a supplementary affidavit
submitted by the applicant at the commencement
of the hearing. At the
hearing rulings on these issues were deferred until all the oral
argument was heard.
Preliminary issues
Applicant’s failure
to file heads of argument in accordance with Rule 40
[4]
Rule 40 of the Labour Court rules reads as follows:
‘
40.
Heads of argument and practice notes in motion proceedings
(1)
In unopposed motions, at the applicant’s request, the registrar
will set down
the application on the unopposed motion roll to be
heard by the judge presiding in motion court. Heads of argument need
not be
filed unless the application is a review application.
(2)
In opposed motion proceedings, the applicant must deliver heads of
argument within
a period of 15 days after the date on which pleadings
close
.
(3)
The heads of argument must be clear, succinct and without unnecessary
elaboration,
and comply with the requirements of rule 48.
(4)
The respondent must deliver heads of argument no later than 15 days
prior to the hearing
of an opposed application. If the applicant has
failed to file heads of argument, the respondent must in any event
file its heads
within the above time limit.
(5)
In cases where a party for whatever reason fails, neglects or refuses
to file heads
timeously, the court may make a punitive costs order
against the defaulting party and may in certain circumstances strike
the matter
from the roll.
(6)
Where a party is able to do so, heads of argument should, in addition
to being delivered
in terms of the rules, be sent by email to the
applicable address:
(a)
Johannesburg: johannesburglabourcourt@judiciary.org.za;
(b)
Cape Town: capetownlabourcourt@judiciary.org.za;
(c)
Gqeberha: gqeberhalabourcourt@judiciary.org.za; and
(d) Durban:
durbanlabourcourt@judiciary.org.za.
(7)
The heads must indicate, above the heading of the matter, the date on
which the matter
has been set down to be heard, if it is so set
down.
(8)
Each party must ensure that the heads of argument have been placed in
the court file.
(9)
A judge hearing an opposed or unopposed application may at any time
direct that all
or any of the parties file supplementary heads of
argument on any specified issues.
(10)
The failure by one party to file heads of argument shall not be a
basis upon which the other
party would be entitled to the
postponement of the hearing, and it shall remain up to the presiding
judge to determine how the
matter shall be conducted in such event.
(11)
All heads of argument filed in motion proceedings must comply with
rule 48.
(12)
The applicant or the applicant’s representative must file a
practice note by email in respect
of any application enrolled for
hearing.
(13)
The practice note must comply with rule 31, with the necessary
changes.’
[5]
The applicant’s attorney of record failed to file heads of
argument before the matter was heard. Counsel handed
up heads in
court, explaining he had only been briefed within the previous two
days. No condonation application for the late submission
of heads was
filed.
[6]
Not only had the applicant’s attorney failed to file heads
timeously, but after being contacted telephonically Monday
02
February and 03 February 2026 he still failed to file anything,
without tendering any explanation or apology for his non-compliance.
When contacted telephonically by my secretary on 03 February 2026 to
ascertain where the heads of argument were his response was
that he
was on his way to consult with counsel and the heads would be handed
up in court on the morning of the hearing.
[7]
It was left to the applicant’s counsel to tender an apology for
not being able to submit heads earlier on account
of being briefed
late. I accept the pressure counsel was placed under was not
due to any dilatoriness on his part.
[8]
The applicant’s attorney provided absolutely no justification
for not complying with Rule 40(2) in the first place,
nor for failing
to comply with the direction to file the heads by no later than 09h00
on Monday 2 February. He did not even furnish
an apology for not
meeting that further deadline and made no attempt of his own accord
to communicate with the court about his
failure to comply.
[9]
The reason heads must be filed in good time serves a number of
purposes. It gives the opposing party time to digest and
respond
directly to the arguments. This limits the possibility of matters
raised by the applicant not being addressed by the respondent.
Secondly, in addition to the practice note, it provides a judge
reading files in advance with the core arguments they need to be
conscious of when reading the pleadings and the record. It eases and
enhances a judge’s proper preparation for the hearing.
Handing up heads of argument in court in review proceedings is no
help to the other party, nor to the court. There is usually
a
long lead time between the closure of pleadings and the date a review
is set down for argument. There is no justification
for heads
of argument to be still outstanding shortly before the hearing,
particularly where the overdue heads are those of the
applicant,
which compels the respondent to file its heads without having site of
the applicant’s argument.
[10]
At the hearing, the court advised that an order in terms of Sub-Rule
40(5) was being contemplated, but the only concrete
response was that
the attorney tendered the wasted costs of the day, without any
attempt to explain why the heads had not been
filed timeously. There
was no equivalent rule to Sub-Rule 40(5) in the old Labour Court
Rules, and it was regrettably seen as a
necessary addition to the new
rules which were introduced on 17 July 2024. It was clearly
introduced to deal with a recurrent practice
of some legal
practitioners simply ignoring the time periods for filing heads. This
is an appropriate instance in which it should
be applied.
Request to admit a
supplementary affidavit
[11]
At the commencement of the hearing, the applicant sought to file a
supplementary affidavit with the aim of introducing
a new piece of
evidence in the form of a document that she maintains supports her
claim that she was forced to retire. Unsurprisingly,
the admission of
the affidavit was opposed by the third respondent (‘Iron Tree’
or ‘the company’).
[12]
Uniform Rule 6(5)(e) of the High Court rules permits a court to admit
supplementary affidavits at its discretion. As
there is no equivalent
provision in the Labour Court Rules, Rule 71 applies, in terms of
which this court may adopt an appropriate
rule in the Uniform Rules
of the High Court. A party wishing to introduce a supplementary
affidavit, must file an interlocutory
application to admit the
additional affidavit.
[13]
The
admission of a supplementary affidavit is an exceptional step,
granted sparingly and is governed by well-developed principles,
namely: there must be a proper explanation for why the evidence was
not placed before the court timeously; it must be necessary
for the
court to properly determine the issues; there must be no
mala
fides
or culpable remissness on the part of the party seeking to file it;
it must not unfairly prejudice the other party or the prejudice
must
be curable, and it must be in the interests of justice to admit it
without giving a litigant a chance to make out a new case
[1]
.
[14]
In this instance, the request was not made in the form of an
interlocutory application inviting the company to file an
answering
affidavit. In any event, the evidence the applicant seeks to
introduce is intended to influence the court’s
view of her
prospects of success in proving her claim of automatically unfair
dismissal. However, in the event that the court
agrees to
condone the late filing of the review application, it will then
address the merits of the condonation ruling. In the
course of such
analysis, the court cannot take account of evidence that was not
placed before the arbitrator, because the essential
question a court
must determine on review is whether the commissioner reached a
decision which no reasonable arbitrator could have
reached
on the
evidence before the arbitrator
or whether the arbitrator
committed some other gross irregularity in the conduct of the
arbitration. It would be completely
antithetical to a proper
assessment of the reasonableness of an arbitrator’s decision to
evaluate it in the light of other
evidence that was not placed before
the arbitrator. Had it been an application to include a portion of
the arbitration record that
was missing but which was part of the
record placed before the arbitrator, that would have been a different
matter.
[15]
Accordingly, even if the request had been properly brought as an
interlocutory application and the company had an opportunity
to
oppose the application, the supplementary affidavit and its
attachment would not have been admitted.
Substantive merits
Brief background and
chronology
[16]
The applicant was employed as a general
manager since 2008 and alleges that her employment terminated on 31
December 2023 on account
of being told to retire.
[17]
She referred her dismissal dispute to the
CCMA only on 12 April 2024, though this ought to have been done by 30
January 2024. The
referral was therefore approximately 73 days late.
[18]
Subsequently, she filed an amended 7.11
referral form after been advised that the original form contained
more than one dispute.
The revised form was served on 19 April 2024
[19]
On 23 May 2024, a CCMA commissioner ruled
that the referral was out of time and that condonation was required.
The applicant filed
a condonation application the following day. The
application was heard on 26 July 2024, and on 13 August 2024, the
arbitrator
issued his ruling refusing condonation. It is this ruling
which is the subject matter of the review application.
[20]
Instead of filing a review within six
weeks, she only launched her review on 27 November 2024, 104 days
after the ruling was issued,
making it 62 days late.
The application to
condone the late filing of the review application
[21]
The delay in filing the review application was very considerable. It
took more than twice the time it should have. The
applicant had
instructed an attorney to file the application.
[22]
The explanation for the delay this time may be summarized as follows:
[23]
The applicant herself acted promptly in obtaining her file from her
erstwhile attorney within two days of receiving the
condonation
ruling. She consulted with her current attorney on 20 August, who
advised her she could try and set aside the ruling
by bringing a
review application. As far as she knew he was going to start drafting
the review application.
[24]
However, some 44 days later, on 3 October, he advised her that he was
in discussion with counsel and instructed him to
attend to the review
application. Further she was advised that the advocate had agreed to
charge per hour on completion of the
work, so it appears there was no
need for her to pay a deposit for the drafting upfront.
[25]
She was told that the attorney and counsel decided she needed to
attend a consultation with counsel on 11 October.
At the meeting
counsel undertook to have the application drafted within a week.
[26]
However, counsel never drafted the papers, despite weekly promises to
do so. Her attorney did not file a confirmatory
affidavit, so I can
only assume this is what she was advised. She states in the vaguest
terms that she was told counsel appeared
to be busy with other
matters and he had unspecified personal issues he had to attend to
which led to the delay.
[27]
In any event, owing to counsel not doing what he had undertaken to,
the instruction for him to draft the review application
was withdrawn
on 30 October.
[28]
This necessitated another consultation with the attorney on 8
November and it took the applicant two weeks to raise enough
funds to
appoint another counsel on 18 November. It was only more than a week
later that the application was filed on 27 November.
This delay
accounted for a further 19 days.
[29]
The applicant argues that she acted promptly and the delay was no
fault of her own.
[30]
I note that in this instance there is no confirmation the affidavit
by the applicant’s current attorney of record
confirm the
interactions with counsel.
[31]
The company disputes the veracity of the applicant’s account
and rightly criticizes the lack of corroborative material
to support
her narrative, such as correspondence or details of communications
between her counsel and attorney.
[32]
The explanation is far from comprehensive, though the company is not
in a position to dispute any of the events mentioned.
I agree
also that the question of the applicant’s lack of funds is only
mentioned in a superficial manner. She does not set
out her financial
position at the time or how she managed to acquire the funds to brief
counsel during the two week period she
mentions. It is not sufficient
to merely outline these developments without providing details of the
amounts needed, why she did
not have enough at the time and how she
was able to come up with the necessary funds when she did.
[33]
The applicant also does not explain why her attorney could not at
least have drafted the founding papers himself.
An applicant in
review proceedings does not need to commit themselves to a final
version of their grounds of review when they launch
the application.
Because that version can be amended and augmented when the
supplementary affidavit is filed under Rule 37(20)(a),
an applicant
in review proceedings can rectify any errors in the founding papers.
Yet all too often, the initiation of review
proceedings is
unnecessarily portrayed as a matter of complexity necessitating
counsel’s expertise as if the founding papers
will caste the
review case in stone.
[34]
In summary, the explanation for the lengthy delay, while not
inherently implausible nor attributable to the applicant,
lacks
sufficient detail and is a poor one.
[35]
The next enquiry is whether the prospects of success are such that
they might offset the paucity of the explanation and
the extent of
the delay. In other words, is there some prospect that the
condonation ruling should be set aside?
Prospects of success
of the review application
[36]
The grounds of review of the condonation
ruling are set out and discussed below.
[37]
Firstly, the applicant claims the
arbitrator disregarded evidence of her physical and psychological
state at the time and immediately
after her dismissal.
[38]
As mentioned already, the applicant’s
account of her physical and psychological state is pleaded in the
vaguest terms. Even
on her own version, there is no evidence to
suggest that her
petit mal
epilepsy seizures had any connection with, or
resulted from, the termination of her service. There is no evidence
that she sought
medical attention arising from the termination of her
employment. Insofar as she suggests the arbitrator ignored evidence
of incapacity,
which was supposedly so serious that she could not
even begin to take initial steps to challenge her alleged dismissal,
the evidence
to support such a conclusion was not placed before the
arbitrator.
[39]
Secondly, it is argued the arbitrator did
not give due consideration to the applicant’s lack of knowledge
of CCMA rules.
[40]
It is true the arbitrator did not
specifically mention her lack of knowledge of the CCMA rules. The
applicant stated that she was
a lay person without any knowledge of
CCMA processes and timelines. In this respect, her position is no
different from most employees.
However, it cannot be ignored that she
was a general manager of a sizeable business with several years’
experience. It is
difficult to conceive it would have been beyond her
personal capabilities to have made initial inquiries about the
procedures to
follow either online or by visiting the CCMA. Even when
she instructed her erstwhile attorney by 27 February, that did not
accelerate
the referral. It was nearly six weeks later that the
referral was made. Arguably though, that lapse of time is
attributable to
his dilatoriness.
[41]
Thirdly, it is claimed the arbitrator did
not give consideration to the fact that she could not get assistance
of a trade union.
[42]
The applicant vaguely avers that she could
not reach her union officials telephonically to consult with them due
to changes in physical
location and telephone service providers which
she only learned of later. No detail about the alleged changes in
location (presumably
a reference to the location of the union’s
offices) and telephone numbers was provided to support her account.
Moreover,
her alleged attempts are completely lacking in any relevant
dates and there is no explanation why it was only in February the
following
year that she sought alternative legal assistance.
[43]
Fourthly, it is argued the arbitrator
failed to consider the unavailability of her attorney until 18 March.
[44]
It is true the arbitrator does not
specifically mention this in his ruling. However, her affidavit it
bereft of any claim that the
attorney she contacted was only
available then. She did not explain when she first attempted to get
hold of the attorney and why
he was unavailable until that date.
Moreover, this submission is contradicted by her own averment and
email correspondence that
the attorney already contacted the
company at the end of February. Such a glaring inconsistency raises
more questions than
it answers, and plainly undermines this
complaint.
[45]
Fifthly, the applicant contends the
arbitrator failed to consider the evidence on which the application
was based.
[46]
Apart
from anything else this is merely a bald assertion unsupported by
evidence and carries no weight. The mere fact such
a claim is
made also demonstrates a failure by the applicant’s attorney to
appreciate what legitimate grounds of review are
and the distinction
between an appeal and a review. In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[2]
the Labour Appeal Court emphasized the difference thus:
‘
[21]
Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome (see
Minister
of Health & another NO v New Clicks SA (Pty) Ltd & others
2006 (2) SA 311
(CC)).
But
again, this is considered on the totality of the evidence not on a
fragmented, piecemeal analysis
.
As soon as it is done in a piecemeal fashion, the evaluation of the
decision arrived at by the arbitrator assumes the form of
an appeal.
A fragmented analysis rather than a broad based evaluation of the
totality of the evidence defeats review as a process.
It follows that the argument that the failure to have regard to
material facts may potentially result in a wrong decision has no
place in review applications.
Failure
to have regard to material facts must actually defeat the
constitutional imperative that the award must be rational and
reasonable — there is no room for conjecture and guesswork.’
(emphasis
added)
[47]
Sixthly, the applicant contends the
arbitrator’s reasoning that the extent of the delay and lack of
proper explanation outweighed
the prospects of success was
irrational.
[48]
Can a
consideration of the prospects of success of the applicant’s
case compensate for the absence of an acceptable explanation
for the
delay? In the oft-cited Labour Appeal Court decision in
NUM
v Council for Mineral Technology
[3]
,
the court emphasised the established 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
”
[4]
[49]
Since then,
the Constitutional Court held,
Grootboom
v National Prosecuting Authority & another
[5]
,:
‘
[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 .
(emphasis added)
[50]
Despite the weakness of the first five
grounds of review, I am not persuaded that the arbitrator should have
been so ready to dismiss
the condonation application without regard
to the merits of the matter, for the reasons discussed below. In the
circumstances,
I am not persuaded he exercised his discretion
judicially in this respect.
[51]
Assessing the applicant’s prospects of success on the
substantive merits of her case, raises something of a conundrum.
[52]
In essence, her case is that the company took the initiative
and told her she had to resign and she duly completed all the
documentation.
The company by contrast stated that she applied for
‘
normal retirement’
. An affidavit signed by the
managing director, Mr S Porter, on 27 May 2024, could support
different interpretations of what transpired.
In that affidavit he
speaks of an initial discussion with the applicant ‘
on the
back of an off-the-cuff discussion with one of the original founders
about retirement’
. There was an agreement to have a
face-to-face discussion with the applicant at the company premises.
He then states he had a face-to-face
discussion with her on 31
October on MS Teams following on from the initial conversation with
her the day before. He comments that
the conversation on 31 October
was ‘
with no negative feedback’
from the
applicant. The same day a follow-up conversation took place with the
Metrofile HR team around the IronTree HR policy document
as signed by
her. On 4 December 2023 a retirement letter and package was
‘
presented
’ to her and ‘
retirement was
acknowledged by signing the retirement letter’.
[53]
On this affidavit, it is not clear that the
applicant initiated the retirement discussion. Nowhere does he state
that she retired
because she had reached the normal or agreed age of
retirement for a person employed in her capacity, which is the basis
for refuting
an automatically unfair dismissal claim based on age in
terms of s 187(2)(b) of the LRA.
[54]
In
the circumstances the parties are substantially at odds over the true
character of the factual scenario which gave rise to her
retirement,
which is critical to the determination of her claim. In the
circumstances, I cannot say the applicant has no prospects
of success
or nor arguable case. It seems to me that only a trial can
resolve this dispute
[6]
and
given the importance attached to dismissal for a prohibited reason
the applicant should be given the opportunity to proceed
with her
claim despite the poor explanation for the various delays.
[55]
In light of the analysis above, it would be
in the interests of justice to condone the late referral of the
review application and
to review and set aside the condonation ruling
of the arbitrator.
Order
1.
The
late filing of the Applicant’s review application is condoned.
2.
The
condonation ruling of the Second Respondent on 13 August 2024 under
case number WECT 6449-24 is reviewed and set aside and substituted
with a ruling that the Applicant’s late referral of her dispute
to the First Respondent is condoned.
3.
If
the Applicant intends to proceed with her case of automatically
unfair dismissal, she must file her referral within 30 days of
this
judgment.
4.
The
Applicant’s attorney of record may not charge the Applicant any
fees for his attendance at court on 4 February 2025, or
for any
professional services rendered by him to the Applicant on that day,
R
Lagrange
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
---D Zantsi
Instructed
by:
---K Govender Attorneys
For the
Respondent: ---
E Geldenhuys from Macgregor Erasmus Attorneys Inc.
[1]
James
Brown & Hamer (Pty) Ltd (previously named Gilbert Hamer & Co
Ltd) v Simmons NO
1963(4) SA 656 (A) at 660D-H, cited with approval in
Butterworths
Publishers (Pty) Limited v Jacobsens Group (Pty) Ltd and Another
[2005] 2 All SA 588 (T)
[2]
(2014) 35
ILJ
943 (LAC)
[3]
[1999] 3 BLLR 209 (LAC)
[4]
At
paragraph 10.
[5]
(2014) 35
ILJ
21
(CC)
[6]
See
Smith
Capital Equipment (Pty) Ltd v Mergui
(2022) 43 ILJ 649 (LAC) concerning the treatment of substantial
disputes of fact in condonation applications at paragraph 25.