THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JS856/22
In the matter between:
ERICAH LUCKY MOTOPI Applicant
and
SANLAM CORPORATE (A DIVISION OF SANLAM
LIFE INSURANCE LIMITED) Respondent
Heard: 23 January 2026
Delivered: 25 February 2026
REASONS FOR ORDER
PHEHANE, J
Introduction
[1] On 23 January 2026, this C ourt handed down an order dismissing the
applicant’s application for cond onation for the late filing of his statement of
claim with no order as to costs.
[2] The brief reasons for the order follow below.
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Background
[3] In an ex tempore judgment delivered on 12 June 2025, this Court found t he
referral by the applicant to this C ourt to adjudicate his unfair dismissal dispute
launched in terms of the provisions of section 191(5)(b)(ii) of the Labou r
Relations Act1 (LRA) was filed late. Consequently, the applicant was ordered
to bring a condonation application within 10 days of the issuance of the order;
in addition, the parties were ordered to file practice notes and heads of
argument before the allocated date of the hearing of the condonation
application.
[4] The condonation application served before me on 23 January 2025. Both
parties were legally represented by counsel on this occasion.
[5] The applicant’s attorney of record filed a practice note before the hearing
date, in which practice note the following is recorded: the legal
representatives of the applicant, the issues for determination by this Court, the
relief sought, the pages of the record that the presiding judge should read,
and that the matter was ripe for determination and no preliminary matters
were required to be determined.
[6] The impression created by the practice note was that the matter was ripe for
hearing.
Postponement
[7] In a surprise turn of events, at the commencement of the proceedings,
counsel for the applicant brought an application for the postponement of the
application and made the following submissions from the B ar: when the
applicant brought the condo nation application, he was self - representing; the
applicant’s current attorney of record was instructed on 23 December 2025,
and therefore, the applicant ’s attorney did not have an opportunity to peruse
the Court file; however, the applicant’s legal representatives were aware that
the founding affidavit in the condo nation application was wholly inadequate
and therefore required a postponement in order to “ amend” the condonation
1 Act 66 of 1995 (as amended).
3
application and that such amendment would be made within 10 days of the
Court order. It was submitted by the applicant’s counsel that costs should be
costs in the cause, as the respondent has a strong financial arm and w ould
suffer no prejudice should postponement be granted, whereas the applicant
being unemployed, would suffer prejudice should postponement be refused.
Insofar as the applicant ’s financial standing is concerned, the applicant ’s
counsel submitted that the applicant could not afford the services of legal
representation, was let down by the pro bono office when he launched his
referral and that his current legal representatives are acting on a pro bono
basis. Therefore, the applicant was not in a position to tender costs should the
postponement be granted.
[8] When asked by the Court why the application for postponement was not
brought prior to the hearing date considering the applicant’s attorneys had
been on record for a month, counsel for the applicant submitted it was due to
the applicant not having funds to pay his legal costs. I find this submission
perplexing given that Counsel submitted that the applicant is being assisted
on a pro bono basis.
[9] Counsel for the respondent opposed the application for postponement on the
grounds that the respondent was brought to C ourt under the impression
created by the applicant that the application was ripe for hearing. This
impression arises when considering the content of the practice note which
was drafted by the applicant’s current attorney of record and filed on 9
January 2026. Counsel for the respondent emphasized that t he applicant’s
practice note is detailed and recor ds that the condonation application was
ready to be heard, that heads of argument had been filed and no preliminary
matters were to be determined. In addition, counsel for the respondent
submitted that the postponement application was not brought timely and the
reasons for requiring postponement are not made under oath. Further, the
reasons for requiring postponement are not made under oath. Further, the
reasons for the postponement made from the Bar differ from the content of
the applicant ’s practice note. In relation to the costs occasioned by the
postponement, counsel for the respondent submitted that the respondent is
custodian of its client’s monies and it is incorrect to state that it has a str ong
4
financial arm and would not be prejudiced, particularly when regard is had to
the requirement in terms of the purpose of the Labour Relations Act 2 (LRA)
that dismissal disputes ought to be resolved expeditiously as pronounced in
the Constitutional Court case of Toyota SA Motors (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and others
3 (Toyota). In addition, the
applicant’s condonation application is wholly inadequate and falls short of the
well-known requirements to succeed in the grant for condonation.
[10] Counsel for the applicant maintained that the applicant’s legal representatives
did not have the opportunity to peruse the Court file; further, that the content
of the practice note is incorrect. I found this submission quite alarming to say
the least, in view of the fact that detailed heads of argument and a detailed
practice note directing the Court to the portions of the papers that must be
read were filed by the applicant’s current attorneys of record. It cannot be, in
such circumstances, that they had not perused the Court file. Thus, the
reason for requiring a postponement in order to peruse the file is not bona fide
in my view.
[11] The reason for requiring a postponement to supplement the applicant’s
inadequate pleadings is unconvincing, as the legal representatives of the
applicant drafted detailed heads and a practice note based on the current
pleadings and did not submit in these documents that there were any
shortcomings in the applicant’s papers, this despite the shortcomings being
glaring. The applicant’s legal representatives elected to proceed with heads of
argument on the pleadings they concede are inadequate.
[12] In Myburgh Transport v Botha t/a SA Truck Bodies
4 the Supreme Court of
Namibia set out principles applicable for the grant of postponement which are
instructive. In summary, the Court adjudicating a postponement application
has a discretion whether or not to grant the application. The applicant in a
has a discretion whether or not to grant the application. The applicant in a
postponement application seeks an indulgence and must provide a full and
satisfactory explanation of the circumstances that give rise to the application.
2 Act 66 of 1995, as amended.
3 2016 (3) BCLR 374 (CC) at para 1.
4 1991 (3) SA 310 (Nms).
5
The application must be brought timely, that is, as soon as the circumstances
which give rise to the postponement become known to the applicant. The
application must be bona fide and must not be a tactical manoeuvre that will
advantage the applicant, which advantage the applicant is not entitled to.
Prejudice to either party is an important consideration.
[13] In Lekolwane v Minister of Justice and Constitutional Development 5 the
Constitutional Court stated as follows in respect of the factors to be taken into
account in determining an application for postponement:
‘The postponement of a matter set down for hearing on a particular date
cannot be claimed as a right. An applicant for a postponement seeks an
indulgence from the court. A postponement will not be granted, unless this
Court is satisfied that it is in the interests of justice to do so. In this respect the
applicant must ordinarily show that there is good cause for the postponement.
Whether a postponement will be granted is therefore in the discretion of the
court. In exercising that discretion, this Court takes into account a number of
factors, including (but not limited to) whether the application has been
timeously made, whether the explanation given by the applicant for
postponement is full and satisfactory, whether there is prejudice to any of the
parties, whether the application is opposed and the broader public interest. All
these factors, to the extent appropriate, together with the prospects of
success on the merits of the matter, will be weighed by the court to determine
whether it is in the interests of justice to grant the application.’
(Own emphasis).
[14] After hearing the submissions for postponement, this Court refused to grant
postponement for the reasons that follow below.
[15] The application was not brought timely. The reasons for postponement as
explained by the legal representatives are not contained in an affidavit .
Nothing is placed before this C ourt to determine when the applicant’s legal
Nothing is placed before this C ourt to determine when the applicant’s legal
representatives became aware that postponement was necessary . T he
explanation provided that the reason postponement was sought on the date of
5 2007 (3) BCLR 280 (CC) at para 17.
6
hearing is due to the applicant not having funds to pay for legal representation
is not plausible in light of counsel’s submission that the applicant is
represented pro bono. In addition, the reason for postponement was not bona
fide as it transpired that the applicant ’s legal representatives had perused the
pleadings such that they were able to file detailed heads of argument as well
as a practice note, which they would not have f iled had they not perused and
considered the pleadings.
[16] The applicant’s legal representatives sought to amend the application which
they conceded was inadequate in circumstances in which they failed to file a
replying affidavit . A detailed answering affidavit was filed yet no replying
affidavit was filed despite this Court’s order of 12 June 2025 specifically
ordering that further pleadings may be filed. No satisfactory explanation was
provided for failing to file a replying affidavit together with an application for
condonation for its late filing if the late filing were to be opposed. There was
simply no intention to file a replying affidavit . In the absence of a replying
affidavit, the respondent’s averments as contained in its answering affidavit
stand uncontested.
[17] The impression that is created is that the applicant’s intention in seeking a
postponement was to alter his case in toto as his representative conceded
that his papers are inadequate. This is not a fair manner in which to litigate.
[18] A party is entitled to amend or supplement his or her papers. This must be
done in line with the Rules of Court and an amendment will be granted where
there is no prejudice to the other party. In the present application, the
impression created before the hearing date was that the applicant was
satisfied with his pleaded case and made an election to proceed on the
current papers. To allow a postponement in such circumstance would not only
delay the disposal of the matter, but it will also be prejudicial to the
delay the disposal of the matter, but it will also be prejudicial to the
respondent, which prejudice would not be cured by a costs order. Labour
disputes must be resolved – delays are detrimental to the rights of an
employee who may be without income pending the resolution of the dispute
7
and are also detrimental to an employer who may be ordered t o reinstate an
employee after several years.6
[19] Even if postponement were allowed with an appropriate costs order, the
applicant has failed to demonstrate prospects of success on the merits . For
this reason and the afore-going reasons, it was not in the interests of justice to
grant postponement.
Condonation
The test
[20] The requirements that must be satisfied to succeed in an application for
condonation are well-known.7 An applicant in a condonation application must
set out the degree of the delay and show good cause for the delay; further ,
the applicant must deal with the prospects of success on the merits and
prejudice. An applicant for condonation seeks an indulgence from the Court
and is to show sufficient cause to succeed in the grant of condonation by the
Court.
6 Toyota (id fn 3) at para 4. See also: para 45 where the Constitutional Court held that excessive
delays in labour litigation may induce a reasonable belief for the successful party that the order had
become unassailable.
7 See: Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). In Grootboom v National Prosecuting
Authority and another (2014) 35 ILJ 121 at para 50, the Constitutional Court stated that the factors
that are to be considered, in the interests of justice, in determining a condonation application include
the following:
‘(a) the length of the delay;
(b) the explanation for, or cause for, the delay;
(c) the prospects of success for the party seeking condonation;
(d) the importance of the issue(s) that the matter raises;
(e) the prejudice to the other party or parties; and
(f) the effect of the delay on the administration of justice.’
The Constitutional Court went on further to state at para [51] as follows:
‘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.’ [Own emphasis]
8
[21] Recently, in Aspen Holdings (Pty) Ltd and another v Phelane and another, 8
the Labour Appeal Court (LAC) restated the essence of the test as follows:
‘The onus of showing the existence of good cause in a condon ation
application rests with the applicant, and this essentially entails satisfying two
well- established requirements, namely: (a) providing a satisfactory
explanation for the delay and (b) showing the prospects of success in the
main case’.
[22] It is trite that in the absence of a full, accurate and reasonable explanation for
the delay, the prospects of success are immaterial.9
[23] At the outset I mention that the applicant filed two purported applications for
condonation.
[24] The first is a typed notice of motion dated 24 June 2024. This notice of motion
does not contain a prayer seeking condonation for the late filing of the
applicant’s statement of claim. It is accompanied by a terse handwritten
affidavit deposed to by the applicant on 17 June 2025.10 The respondent filed
an answering affidavit on 24 June 2025.
[25] The second application comprises of a typed notice of motion dated 8 October
2025 similarly worded as the June 2025 notice of motion, together with a
typed affidavit.11 Several problems arise with this application. First, it does not
comply with the order of this Court of 12 June 2025 directing the applicant to
bring a condonation application within 10 days of that order. Second, the
notice of motion does not contain a prayer seeking condonation for the late
filing of the statement of claim. Third, the purported affidavit in support of this
application is unsigned. The respondent opposes this application and in so
doing, stands by its answering affidavit delivered on 24 June 2025.
[26] Counsel for the applicant informed this Court that the application delivered in
October 2025 is the correct condonation application that this Court is to
8 [2025] 4 BLLR 409 (LAC) at para 14.
8 [2025] 4 BLLR 409 (LAC) at para 14.
9 See: National Union of Mine Workers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at
para 10.
10 Pleadings, pp 1 to 6.
11 Pleadings pp 73 to 79.
9
determine and this is the application the applicant sought to amend. When
presented with the problems as set out above, Counsel for the respondent
abandoned this application and proceeded to argue the applicant’s case on
the basis of the handwritten affidavit.
[27] The handwritten aff idavit contains no averments regarding the period of the
delay, the reasons therefore, the prospects of success in the main referral and
the prejudice to either party should condonation be granted or refused. This is
fatal to the condonation application. I point out that counse l for the applicant
did not make any submissions regarding being afforded the opportunity to
supplement this handwritten affidavit . Rather, he submitted that following the
refusal of the postponement application and in light of the fl aws in the typed
condonation application, the only document remaining to argue on was this
handwritten affidavit.
[28] The delay is egregious. The Commission for Conciliation, Mediation and
Arbitration (CCMA) issued its certificate of non-resolution of the dispute on 22
April 2022. Therefore, the referral to this Court ought to have been brought
before 22 July 2022. The referral was filed 138 days late.
12
[29] The applicant appears to assume that the period of delay should be
calculated from 24 November 2022 when the C CMA issued a ruling that he
should refer his dispute to this court. This is incorrect as section 191(11)(a) of
the LRA makes provision that a referral in terms of section 191(5)(b) must
take place 90 days after the issuance of the certificate.
[30] In his affidavit, the applicant avers that the pro bono office let him down and
filed a wrong ‘ condonation’ when he launched his referral in this Court . He
states on the one hand, that a new ‘ condonation’ was issued on 22 August
2022 ‘that superseded the one that was issued in April’ and a ruling was made
by the CCMA o n 22 November 2022 that he should refer his dispute to this
by the CCMA o n 22 November 2022 that he should refer his dispute to this
Court, which he did. He states that the correct ‘condonation’ is attached
together with emails confirming what transpired and he asks this Court to
consider this information and enrol his referral for hearing.
12 Respondent’s heads of argument at para 19.
10
[31] As I understand the applicant’s papers, he contends his referral was not filed
out of time.
[32] Firstly, no other certificate of outcome was presented to this Court other than
the certificate dated 22 April 2022. Secondly, I understand ‘condonation’ to be
a condonation ruling , but no condonation ruling is attached to the affidavit.
Even if it were, the condonation ruling would not assist the applicant, as the
provisions of section 191(11)(a) of the LRA state that a referral in terms of
section 191(5)(b) must be made 90 days after the body that conciliated the
dispute issues a certificate of outcome. Thus , the launching of the applicant’s
referral remains out of time.
[33] To the extent that the applicant contends that this Court erred in considering
the certificate of 22 April 2022, neither the applicant nor his legal
representative took any steps to set aside this Court’s judgment and order of
12 June 2025. Thus, the judgment still stands.
[34] What is apparent, is that in the application before this Court, the applicant
seeks that his referral be re -enrolled. He does not seek condonation for the
late filing of his statement of claim. The applicant is legally represented in
these proceedings and ought not to have proceeded with this fatally defective
application.
[35] The applicant’s legal representatives assumed that postponement would be
granted and were ill-prepared to proceed with this application. This Court was
informed that the “correct” condonation application is the one that was filed in
October 2025. When faced with the predicament that the notice of motion in
that application did not contain a prayer for condonation and that the f ounding
affidavit in support thereof was unsigned, counsel for the applicant resorted to
reliance on the inadequate affidavit filed in June 2025, which is fatally
defective.
[36] The respondent’s answering affidavit sets out in detail that the applicant has
[36] The respondent’s answering affidavit sets out in detail that the applicant has
not made any averments regarding the prospects of success on the merits.
The respondent has fully explained why the applicant h as no prospects of
success in the main referral – following a consultation process in terms of
11
section 189 of the LRA, he was offered an alternative role, which he refused,
notwithstanding that the business rationale for change was conceded; the
applicant also refused to apply for a vacant role and ultimately, he signed a
separation agreement and received a severance package. No process was
instituted to set aside this agreement nor has he offered restitution for the
severance pay he received. Therefore, his contention that his dismissal was
unfair is frivolous.
[37] The respondent submits that the applicant is not inexperienced in labour law
as he makes himself out to be in his affi davit, as he holds qualifications in
labour law and is a self -professed specialist in human resources and has
knowledge and experience in labour relations.
13
[38] Counsel for the applicant repeatedly implored this Court to be lenient and not
to close the doors of justice on the applicant. It is concerning that a perception
is created that this Court would close its doors on a litigant, where the legal
representatives were ill-prepared, and did not bother to place a paginated set
of pleadings before the Court despite being the dominant litigant. It is the
respondent that placed a comprehensive indexed and paginated bundle of
pleadings and documents before the Court.
[39] The Constitution of the Republic of South Africa, 1996 14 provides that every
person has a right to fair labour practices. The LRA gives effect to this right.
This Court is a creature of statute. That this is a Court of equity is correct.
However, there is a growing uns avoury practice in this Court , where litigants
who are ill -prepared resort to statements that this is a Court of equity and
expect this Court to jettison its Rules, legal principles and requirements and
give way to mediocrity. The day that happen s will be a travesty of justice. It is
one thing to ask the Court to take a generous approach to pleadings prepared
by laypersons as the Constitutional Court has pronounced, 15 and another to
by laypersons as the Constitutional Court has pronounced, 15 and another to
ask this Court to accept , as in the present case, pleadings that do not seek
13 See: pleadings, answering affidavit at para 26 at p 18, para 43 at p 20 and annexure “PR2” at p 26.
14 See: section 23 thereof.
15 Xinwa and others v Volkswagen South Africa (Pty) Ltd [2003] 5 BLLR 409 (CC) at para 13.
12
condonation at first blush because a litigant is adamant that his referral was
not late.
Conclusion
[40] The applicant’s affidavit is wholly inadequate. No case is made out for
condonation and that is the end of the matter for the applicant. Having
considered the prospects of success on the merits , even if this Court were to
take a generous approach in considering the applicant’s case as pleaded, as
there are no reasonable prospects of success on the merits, the application
cannot succeed. The applicant is well versed in labour law. This is not
disputed. This is not a layperson that does not comprehend labour law and
how labour disputes are to be resolved. The prejudice to the respondent
would have been greater in defending an unmeritorious dispute if condonation
was granted.
[41] In consideration of the afore- going, it was not in the interests of justice to
grant condonation. The respondent did not seek any order as to costs against
the applicant.
[42] It is for the above reasons that the aforesaid order was made.
_______________________
M. T. M. Phehane
Judge of the Labour Court of South Africa
13