IN THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case No: C330/2024
In the matter between:
MULALO NEFALE Applicant
and
UNIVERSITY OF CAPE TOWN First Respondent
COMMISSIONER KN SAMUELS N.O. Second Respondent
COMMISSION FOR CONCILIATION AND
MEDIATION AND ARBITRATION Third Respondent
Heard: 03 July 2025
Delivered: 09 February 2026
JUDGMENT
___________________________________________________________________
MAPOMA, AJ
[1] This is an application in terms of section 145 of the L abour Relations Act1 (the
LRA), to review and set aside the condonation ruling of the first respondent (the
commissioner) dated 21 June 2024, issued under the auspices of the third
respondent, Commission for Conciliation, Mediation and Arbitration (the CCMA).
1 Act 66 of 1995, as amended.
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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In the ruling, the commissioner refused to grant the applicant condonation for the
late referral of her unfair dismissal dispute against the first respondent, the
University of Cape Town.
[2] In the application for condonation, t he applicant sought the CCMA’s indulgence
for referring the dispute approximately 7 months (or 205 days ) late , and thus
outside the statutory timeframes of 30 days within which to l odge the dispute as
prescribed by section 191(b)(i) of the LRA.
[3] The applicant contends that by dismissing the condonation application without
holding a hearing to afford the applicant opportunity to clarify her explanation for
the delay in lodging her dismissal dispute, failing to consider the application as
unopposed, and failing to consider the prospects of success, the commissioner
committed an irregularity that rendered the condonation ruling reviewable.
[4] The application is opposed by the first respondent . The main basis advanced for
opposition is that the applicant failed to make out a case for condonation before
the commissioner , and that, based on the information placed by the applicant
before the commissioner, the ruling was reasonable and unimpeachable. It
further contends that on the papers placed before the Court, the applicant has
not established a case demonstrat ing that the commissioner committed
misconduct, gross irregularity or exceeded his pow ers, and thus the
commissioner’s ruling is reasonable and cannot be faulted.
[5] The central issue for determination by the Court is whether the decision of the
commissioner to refuse condonation for the late lodgement of the dispute has
reviewable defects that warrant the review and set ting aside of the ruling. This
impugned arbitration ruling arises from the factual matrix set out in the ensuing
paragraph.
Background facts
[6] On 26 January 2023, the applicant was offered by the first respondent a post-
doctoral fellowship position, which she accepted, upon which she was duly
doctoral fellowship position, which she accepted, upon which she was duly
assigned a supervisor . The fellowship entailed, inter alia, teaching students and
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allowing the applicant to develop her experience academically as a doctoral
fellow. The applicant commenced her work in February 2024 accordingly.
[7] During the course of the fellowship programme, counter -accusations that
compromised the working relationship arose between the applicant and her
supervisor ensued. This resulted in the first respondent informing the applicant
on 4 July 2023 that her contract would end on 31 July 2023, and that she would
not continue with her doctoral fellowship with the first respondent thereafter. The
applicant claims that she was only informed on 1 September 2023 of the
termination of the fellowship programme. Nothing really turns on this issue for
the purposes of this application.
[8] On 9 M ay 2024, the applicant referred an unfair dismissal dispute to the
Commission for Conciliation , Mediation and Arbitration (CCMA) . Coupled with
the referral notice was the applicant’s application for condonation of the late
referral of the unfair dismissal dispute. The condonation application was made
by completing the required standard affidavit as required by rule 9 of the CCMA
rules, in which the applicant address ed the prescribed topics, which are
requisites for condonation, namely, background, degree of lateness , reasons for
lateness, prospects of success, prejudice and any other general information.
[9] In the condonation application, the applicant stated the background as that she
was dismissed on 1 September 2023, but that the dispute arose on 11
September 2023 when the University refused to reinstate her “after all attempts
to negotiate or follow other internal procedures” failed. For what it may be worth,
it is apposite to point out that the first respondent contends that the termination
was on 31 July 2023, the applicant having been notified o n 4 July 2023 that her
post-doctoral fellowship contract would come and end on 31 July 2023 and that
she would not be the first respondent’s post-doctoral fellow thereafter. The notice
she would not be the first respondent’s post-doctoral fellow thereafter. The notice
is not denied by the applicant , save that she received the notification letter on 1
September 2023.
[10] In addressing the degree of lateness in the referral of the dispute in the
condonation application to the CCMA , the applicant stated that the referral was
205 days late, calculated from her considered date of dispute. In her explanation
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of the delay, the applicant stated that on 3 May 2024, she approached the
Department of Labour. No further explanation was offered in the condonation
application regarding this issue.
[11] Regarding the reasons for the delay, t he applicant ’s explanation for the delay
was as follows:
‘In my case, various factors contributed to delays: personal and psychological
stress, unforeseen circumstances , legal and procedural challenges, and
exhaustive attempts to resolve the issue internally. I entrusted the institution’s
name that its management cannot spend much time focusing on a problem
than coming up with an actionable amicable resolution. Despite all my efforts,
the acting Vice Chancellors refusal to me exacerbated the situation, hindering
progress and causing additional harm.’
[12] In the paragraph where the applicant was required to address the prospects of
success, the applicant did not make any averments before the Commissioner.
[13] Where the applicant was required to explain the prejudice to the other party , the
applicant explained as follows:
‘Unable to proceed with my career . My right to education is violated as a
result of unfair treatment that tarnished my name. I believe prejudice
influenced my case’ s handling, despite my efforts to resolve it internally
amidst personal stress, unforeseen challenges and legal hurdles. However,
my attempts were obstructed by the Acting Vice Chancellor ’s refusal to
engage, hindering resolution and worsening the situation’s impact. I fear bias
against me undermined fair treatment, impe nding my ability to defend my
rights effectively.’
[14] It is noteworthy that in the founding affidavit for the review application, the
applicant made elaborate factual averments under what she refer red to as
background to the dispute. These factual averments in question are new fact s
that were not placed before the commissioner in the application for condonation
when the impugned commissioner’s ruling was made.
when the impugned commissioner’s ruling was made.
[15] It is trite that the court , determining whether the impugned decision is
reviewable, the Court considers the matter based on the information that was
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placed before the decision maker at the relevant time. It follows that it is
impermissible for the applicant to introduce in the review proceedings new
information that was not placed before the commissioner when the impugned
decision was made. The Court will therefore determine the review of the
commissioner’s impugned ruling based on the facts that were placed before the
commissioner when the latter made the ruling.
The Test for Review
[16] The test for review of the arbitration award is well pronounced by the
Constitutional Court, per Navsa AJ , in what is popularly known as the Sidumo
test.2 The test is whether , based on the facts placed before the commissioner,
the decision reached by the commissioner is one that a reas onable decision-
maker could not reach. 3 Applying the test to the instant case, the question is
whether, on the facts placed by the applicant in the application referred to above,
the decision is one that a reasonable arbitrator could not have made.
[17] The apex court in Sidumo found that section 145 of the LRA is suffused by
reasonableness and that it must be read to ensure that administrative action by
the CCMA is reasonable. 4 It is worth noting, however, that the fact that
reasonableness suffuses section 145 does not mean that the grounds listed
therein were obliterated, because review can still be brought on the grounds set
out in section 145 of the LRA.5
[18] Whilst the applicant did not set out succinctly in her founding affidavit the review
grounds, what the Court could decipher is that the impugned ruling is attacked
on the ground that the commissioner committed gross irregularity in not granting
the condonation that was not opposed; that the commissioner failed to set the
matter down for hearing of the condonation application; a nd that th e
commissioner failed or neglected to reasonably consider the reasons proffered
by the applicant for the delay.
2 Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC).
2 Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC).
3 Sidumo (supra) at para 110.
4 Myburgh et al – Reviews in the Labour Court, 34.
5 Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LAC) at para 101.
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[19] It is trite that condonation is not granted on mere asking. 6 It is indulgence
granted by the court upon plausible explanation for the delay being made. A
party seeking condonation must make out a case entitling it to the court's
indulgence. Thus, it is incumbent upon the applicant to provide satisfactory
explanation for the delay not only in timeous prosecution of the matter but also
for delay in seeking condonation for indulgence. The court has discretion, which
must be exercised judicially , upon consideration of all the facts holistically,
whether to grant or refuse condonation.
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[20] In this case, w ith a view to enabling guidance to the parties on the relevant
issues to be addressed by a party seeking condonation, the CCMA developed a
standard affidavit that guides the applicant for condonation . This was in
accordance with Rule 9 of the CCMA Rules , which requires that an application
for condonation for late referral of the dispute be supported by an affidavit or a
written statement, wherein the applicant is required to explain the requirements
mentioned above, namely: a) how late the referral is; b) why it is late; c) why the
applicant believes she or he has a good case; d) how the lateness may prejudice
(negatively affect) the other party, and e) any other relevant factors.
[21] The genesis of the above requirements is the judgment in Mela ne v Santam
Insurance Co Ltd 8. These requirements are long standing and have been
consistently applied by the courts in considering whether to grant condonation or
not. The requirements are interrelated and must be weighed together. For
instance, a weak point on the condonation application may be complemented by
the stronger. In the final analysis, the overriding standard consideration is the
interest of justice.
[22] Crucially, it is incumbent upon the applicant to provide a reasonable explanation
for the delay and show that she did not wilfully disregard the prescribed
for the delay and show that she did not wilfully disregard the prescribed
timeframes and thus justify the default. Essentially, in this case, the applicant
was obliged to satisfy the commissioner by a detailed explanation that there was
6 Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at
para 6.
7 National Union of Mineworkers v Council of Mineral Technology [1999] 3 BLLR 209 (LAC).
8 1962 (4) SA 531 (A).
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good cause to excuse her for non-compliance with the statutory provisions of the
LRA.
[23] In my view, the delay of 205 days was excessive and requir ed a satisfactory
explanation. Despite this requirement, the explanation provided by the applicant
for the delay of approximately 7 months was less than satisfactory. She simply
mentioned what she referred to as a ‘various factors contributed to delays’
without providing any explanation at all as to what precisely those factor s were,
how they caused such a delay, and why the commissioner should grant the
indulgence sought. She did not provide any explanation at all on the prospects of
success in the dispute, nor did she deal adequately with prejudice caused by the
delay to the other party.
[24] The applicant contends that she was expecting the CCMA to set the matter
down for hearing and be afforded the opportunity to elaborate on her explanation
during the hearing. She further contends that the application was not opposed by
the other side, and as such, the commissioner should have granted the
condonation sought. In light of these factors, the applicant contends that by
failing to hold a hearing of an unopposed condonation application before making
the impugned ruling, the commissioner committed a gross irregularity that
rendered the ruling reviewable.
[25] There is no requirement in the LRA, nor in the CCMA rules, for the CCMA to
hold a physical hearing for every condonation application relating to late referral.
Rule 9 of the CCMA rules requires that condonation for late referral should be
applied for in terms of rule 31, which was do ne by the applicant. The CCMA has
the discretion to decide whether to determine the condonation by either holding a
hearing or by considering the application on papers that are based on the
standard affidavit or written sworn statement. In this case, the CCMA determined
the condonation on papers. In my view, the process followed by the
the condonation on papers. In my view, the process followed by the
commissioner is in accordance with the CCMA rules and does not constitute any
irregularity.
[26] It is the Court’s view that the information provided by the applicant for the
indulgence sought for the delay was inadequate to pass master the standard
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threshold for a condonation application. As such, the decision of the
commissioner to refuse the condonation appl ication cannot be faulted in the
circumstances of this case, for it is within the bounds of reasonableness. This is
so because the impugned ruling is that which a reasonable decision-maker could
make. In the circumstances, the application stands to fail.
[27] Regarding costs, I take the view that it will not be in the interest of justice to
deviate from the normal practise of this Court, namely granting an order with no
order costs.
[28] In the result the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
Z.L Mapoma
Acting Judge of the Labour Court of South Africa
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Appearances:
Counsel for the Applicant : Adv S Khoza
Instructed by : Mohau Romeo Tsutsi Law Inc, Cape Town
Counsel for the First Respondent : Adv B Joseph SC
Instructed by : Fairbridges Wertheim Becker, Cape Town