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[2026] ZALCCT 46
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Winini v Commission for Conciliation, Mediation and Arbitration and Others (C443/2024) [2026] ZALCCT 46 (13 March 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no:
C443/2024
(1)
Reportable Yes/No
(2)
Of interest to other Judges: Yes/No
(3)
Revised
In
the matter between:
DEBRA
WININI
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
RICHARD
HEATH
N.O.
Second Respondent
TRAN-ATLANTIC
CONSTRUCTION AND PROJECTS
Third Respondent
Heard
:
10 March 2026
Delivered
:
13 March 2026
Summary:
(Review application –
principles relevant to condonation
restated – arbitrator failed to consider all relevant
principles and did not have regard
to all relevant material before
him – arbitrator must exercise his discretion judiciously and
fairly after taking into consideration
all the relevant facts -
condonation ruling reviewed and set aside and corrected with a ruling
that condonation is granted
)
JUDGMENT
MAY,
AJ
Introduction
[1]
This is an unopposed application to review and set aside an
arbitration award in which the second respondent (the arbitrator)
refused an application for condonation made by the Applicant.
Background
[2]
Applicant referred a dispute to the First Respondent, through her
legal representatives at the time, on 27 June 2024.
In the referral
she alleges that she was dismissed on 27 June 2024, which is the date
of the referral, for reasons unknown to her.
The matter was scheduled
for con/arb on 26 July 2024. No objection to con/arb was received and
the arbitrator, Commissioner Reagan
Jacobs at the time, proceeded in
default.
[3]
Whilst
allowing the Applicant to give evidence, it became apparent to
Commissioner Jacobs that the date of dismissal was not 27
June 2024
but, according to the Applicant, 15 January 2024. He subsequently
issued a ruling on 2 August 2024 that the Applicant
had filed the
referral outside of the time allowed in terms of section 191
(1)(b)(ii) of the Labour Relations Act
[1]
(LRA) and thus directed the Applicant to apply for condonation.
[4]
The Applicant applied for condonation on 8 August 2024 and an
in
limine
hearing on the papers was scheduled for 7 October 2024
before the arbitrator.
[5]
The applicant contended that she was dismissed on 6 December 2023,
that she referred the matter on 27 June 2024 and that
her referral
was therefore six months late. The reasons she gave were that she was
in contact with her employer throughout the
time period and that she
was led to believe that she would be called back.
[6]
She contended that she had prospects of success as she was dismissed
without any fair reason or procedure being followed.
As to prejudice
she stated that she remained unemployed and as such was unable to
meet her responsibilities as a breadwinner. She
further contended
that the Third Respondent (the employer) contended that she signed an
independent contractor’s agreement
which she disputes and
contended that the signature had been copied and pasted onto the
document.
[7]
The employer opposed the application and contended that there was no
dismissal but that the Applicant was an independent
contractor whose
contract ended on 31 January 2024. The employer disputed that the
contract was not signed by the Applicant and
contended that she had
audio evidence that proved that she knew and understood the terms of
her appointment.
The
award
[8]
The
arbitrator relied on
McCann
Worldgroup SA (Pty) Ltd v Landman and others
[2]
and
stated that the Courts have endorsed the principle that where there
is a delay with no reasonable, satisfactory and acceptable
explanation for such delay, condonation may be refused without
considering prospects of success, to grant condonation where the
delay is not explained, may not serve the interests of justice, that
the expeditious resolution of labour disputes is another fundamental
consideration, concluded that it is more probable than not that the
applicant had committed the misconduct complained of, that
it
constituted dishonesty, that the penalty of dismissal falls within a
band of reasonableness and consequently held the dismissal
to be
substantively and procedurally fair.
[9]
The arbitrator was of the view that because the Applicant was legally
represented there was a greater onus upon her to
ensure that the
referral was made timeously. He was of the view that the delay was
excessive, and the reasons preferred were not
comprehensive nor
persuasive.
[10]
On prospects, he acknowledged that there was a dispute of fact and
that it was not appropriate for him to prefer one
version above the
other without the benefit of oral evidence on the issue yet strangely
indicated that on the papers the respondent’s
version is more
probable.
[11]
The most concerning finding however is that the referral was only
made on 8 August 2024 and that this was indicative
to him of the fact
that the Applicant did not consider urgency at all.
Grounds
of review and evaluation
[12]
When
the jurisdiction of an arbitrator is in question, the issue for
determination is whether he or she objectively had jurisdiction
in
law and fact because a finding that the arbitrator had jurisdiction,
because he or she might reasonably have assumed as much,
"
is
wholly untenable in principle
".
In other words, the question of the reasonableness of the
Commissioner's decision does not arise and in effect, the
Commissioner's decision is of no real consequence. The Court
must decide the issue of jurisdiction
de
novo
on the basis of the record filed in the review proceedings.
[3]
[13]
In
Parliament
of the Republic of South Africa v CCMA and Others
[4]
it
was held that:
“
This
Court accepts that when considering applications for condonation,
Commissioners enjoy a wide discretion, and the Courts should
be
cautious when interfering with decision arrived at by Commissioners
in the light of that wide discretion. The applicable test
before the
Court can interfere with a Commissioner’s discretionary
decision is whether or not it can be said that the discretion
was
exercised “capriciously, or upon a wrong principle, or in a
biased manner, or for insubstantial reasons. Thus, the test
is
whether the Commissioner committed a misdirection, an irregularity,
or failed to exercise his or her discretion, or exercised
it
improperly or unfairly.”
[14]
In
Cowley
v Anglo Platinum and Others
[5]
,
it was held that:
“
When
a Commissioner is endowed with a discretion this court will be
very slow to interfere with the exercise of that discretion.
The
commissioner’s exercise of discretion would be upset on the
review if the applicant shows, inter alia, that the
Commissioner
committed a misdirection or irregularity, or that he or she acted
capriciously, or on the wrong principle or in bad
faith or unfairly
or that the exercise seeing the discretion the Commissioner reached a
decision that a reasonable decision-maker
could not reach. If it is
clear that the commissioner exercised such discretion judiciously and
fairly after taking into consideration
all the relevant facts, this
court will not interfere with the exercise of such discretion.”
[15]
It is apparent that the arbitrator did not have the full facts
available to him or perhaps did not have the First Respondent’s
file before him when he made the condonation ruling. He makes no
reference to the fact that a con/arb was scheduled and held on
26
July 2024 nor of the jurisdictional ruling made on 2 August 2024 by
Commissioner Jacobs.
[16]
His finding therefore that the Applicant had no urgency is patently
incorrect on the facts before this Court and thus
before him. The
referral was made on 27 June 2024 on an incorrect dismissal date of
27 June 2024. This is a layperson’s error,
and the correct
consideration would have been to assess whether a reason is given for
the late referral. The Applicant says that
she was in communication
with the employer and had submitted a host of WhatsApp messages as
proof of this. Whilst not satisfactory
in all material respects, she
had given a reason for the late referral. She only received the
ruling from Commissioner Jacobs on
2 August 2024 and applied for
condonation on 8 August 2024. That is neither an unreasonable nor
excessive delay.
[17]
The arbitrator’s assessment of prospects is contradictory and
thus incorrect. As he held initially, the assessment
of which version
is to be preferred is best left to an arbitrating commissioner who
can assess the evidence and make a determination.
Once again, the
arbitrator clearly did not consider the uncontested evidence of the
Applicant that was led before Commissioner
Jacobs. His findings on
prospects are therefore incorrect. The Applicant does have prospects
of success; the employer has not addressed
any of the other factors
relevant to the consideration of whether condonation ought to be
granted.
[18]
The
grant or refuse of condonation is a discretionary power that has to
be exercised with circumspection and only in exceptional
circumstances because of a litigant’s constitutional rights in
terms of section 34 of the Constitution of the Republic of
South
Africa, 1996 (the Constitution), to have any dispute that can be
resolved by application of law decided in a fair public
hearing
before a Court. In the exercise of that discretion therefore, a Court
or Tribunal cannot consider a delay in a vacuum but
in light of all
of the relevant facts including the prejudice to the parties, the
possible consequences of granting, or of not
granting the relief
sought in respect of the merits, the prospects of success and
ultimately the interests of justice.
[6]
[19]
The
factors a Court must consider are the length of the delay; the
explanation for, or cause for, the delay; the prospects of success
for the party seeking condonation; the importance of the issue(s)
that the matter raises; the prejudice to the other party or parties
in granting or not granting the relief requested and not considering
the merits of the dispute; the effect of the delay on the
administration of justice; the litigant’s rights in terms of
section 34 of the Constitution to have any dispute that can
be
resolved by the application of law decided in a fair public hearing
before a Court; and ultimately the interests of justice
[7]
.
Application
[20]
The Applicant’s insufficient reasons aside, she has good
prospects of success, will be prejudiced should condonation
not be
granted, the issue is of some importance to her and deals once again
with whether an independent contract came to be which
in any event on
a simple perusal of same does not contain a fixed period arguably or
whether an agreement of employment came to
be or can be deemed to
exist (another factor the arbitrator fails to grapple with). It is
without doubt that refusing condonation
closes the door on the
Applicant permanently as far as the alleged dismissal is concerned.
On a conspectus of all of the facts
therefore this Court is in a
position to decide the
issue
de
novo
on the basis of the record filed
in the review proceeding
s and is of the view that a proper
case for condonation has been made out.
[21]
In the Court’s view, it is apparent that the arbitrator did not
exercise his discretion judiciously and fairly
after taking into
consideration all the relevant facts and there is no material
connection between the arbitrator’s findings
and the evidence
and the result, and the result is therefore not reasonably supported
by the evidence. As such the award is incorrect
and the application
for review should be granted, the jurisdictional ruling set aside and
corrected.
Costs
[22]
The most appropriate order as to costs is that both parties remain
responsible for their own costs.
[23]
In the premise the following order is made:
Order
1.
The condonation ruling issued by the Second Respondent is reviewed
and set aside.
2.
The Applicant is granted condonation for the late filing of the
referral to the First Respondent.
3.
The First Respondent is directed to reschedule the matter for
arbitration before a Commissioner other than the Second Respondent.
4.
There is no order as to costs.
C.
May
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
Applicant in person
For
the first respondent:
No appearance
[1]
Act
66 of 1995, as amended.
[2]
(JR 48/19) [2020] ZALCJHB 194
[3]
See:
Moses
v Commission for Conciliation, Mediation and Arbitration and Others
(2019)
40 ILJ 2371 (LC) at paras 11 and 12 citing
SA
Rugby Players' Association and Others v SA Rugby (Pty) Ltd and
Others
(2008)
29 ILJ 2218 LAC at para 39 and
Phaka
and Others v Bracks NO and Others
(2015)
36 ILJ 1541 (LAC) at paras 29 and 31
.
[4]
(C646/16) [2018] ZALCCT 12 (24 April 2018) at para 13.
[5]
[2016]
JOL 35884
(LC)
at para 21.
[6]
SAMWU
obo Shongwe and Others v Moloi N.O. and Others
[2021]
5 BLLR 464
(LAC) at para 26.
[7]
Grootboom
v National Prosecuting Authority and Another
2014 (2) SA 68
(CC).