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THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no: D140/2025
In the matter between:
LUNGELO AARON MBILI Applicant
and
DEPARTMENT OF EDUCATION First Respondent
EDUCATION LABOUR RELATIONS COUNCIL Second Respondent
COMMISSIONER M N MASETLA N.O. Third Respondent
COMMISSIONER P JAIRAJH N.O. Fourth Respondent
Heard: 03 March 2026
Delivered: 06 March 2026
JUDGMENT
(1) Reportable: NO
(2) Of interest to other Judges: Yes
Signature Date
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HARVEY J
Introduction
[1] This is an application to review and set aside two rulings issued under the
auspices of the Education Labour Relations Council. The first is a jurisdictional
ruling dated 12 December 2024 in it the bargaining council held that it lacked
jurisdiction because the dispute was referred outside of the prescribed time
limits without an application for condonation. The second is a ruling dated 20
February 2025 in which condonation for the late referral was refused.
Facts
[2] The material facts are common cause. The applicant was promoted with effect
from 2 January 2010 to the position of principal. His salary level ought to have
moved from level 8 to level 9, but remained at level 8.
[3] On 1 June 2015 the applicant was again promoted, this time to a post at salary
level 10.
[4] On 1 July 2024 he referred an unfair labour practice dispute to the bargaining
council in which he claimed that the failure to pay him correctly amounted to a
demotion and was accordingly an unfair labour practice. He claimed
outstanding salary payment for the period 2 January 2010 to 1 June 2015.
The impugned rulings
The ruling on jurisdiction
[5] At arbitration on 25 October 2024, which was held virtually, the employer party
was not present. The fourth respondent commissioner raised the concern that
the dispute had not been referred within the 90- day time period provided for in
section 191(5)(b)(ii) of the LRA . She invited the applicant , who was legally
represented, to make submissions concerning whether the bargaining council
had jurisdiction.
[6] The applicant, through his legal representative, made the submissions
requested. In oral argument at the hearing, and subsequently in written heads
of argument, the applicant contended that there was no need for condonation
because the dispute was continuous and repetitive. Reliance was placed on
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the Labour Appeal Court’s judgment in SABC v CCMA and others 1 to argue
that the unfair labour practice complained of was a ‘continuing wrong’ in that a
fresh demotion occurred each month his salary was short-paid.2
[7] In her ruling dated 12 December 2024, t he commissioner engaged with the
SABC v CCMA judgment but held that the applicant:
7.1 was aware of the act/omission (being paid on the incorrect salary level,
which he characterises as a demotion) in January 2010;
7.2 was promoted in June 2015 at salary level 10; and
7.3 should have referred his dispute before June 2015 if he regarded it as
continuous.
[8] The commissioner concluded that, as the matter was only referred on 1 July
2024 (and thus not within 90 days), the bargaining council lacked jurisdiction.
She ruled that if the applicant wished to pursue the matter , he would have to
apply for condonation.
The ruling on condonation
[9] The applicant then applied for condonation. In that application, he persisted in
his contention that the alleged unfair labour practice was continuous and
repetitive in nature, that a new cause of action arose each time he was paid at
the incorrect level, and that the referral was accordingly not referred late.
[10] The applicant’s condonation application rested solely on the contention that the
bargaining council had jurisdiction and that no condonation application was
required. As a result, he provided no explanation for having failed to refer the
dispute at any time during the period of under -payment, being January 2010 to
June 2015, nor did he explain the further delay between June 2015 ( when the
repeated non-payment characterised as a demotion ceased) and the referral in
July 2024.
[11] The condonation application came before the third respondent commissioner .
On 20 February 2025 the commissioner refused to grant condonation. In his
1 SABC v CCMA and others (2010) BLLR 251 (LAC)
1 SABC v CCMA and others (2010) BLLR 251 (LAC)
2 The written submissions have not been placed before this Court. The Court was also informed that
no recording of the virtual hearing is in existence.
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ruling the commissioner refers to the Labour Court’s decision in City of Cape
Town v Nevin and others 3 in which the court distinguished between the act or
omission said to be unfair, and its ongoing consequences.
[12] The commissioner held that the act or omission had occurred in January or
February 2010, and that the applicant’s justification for the delay rested solely
on the contention that the dispute was ongoing. This, held the commissioner,
amounted to no explanation at all. The application for condonation was
refused.
The Test on Review
[13] The test on review as to whether or not a tribunal has jurisdiction is
correctness. This test applies to the first ruling, in which it was held that the
referral was out of time. This court must decide whether that finding was right
or wrong.
[14] The test on review of the ruling refusing condonation is reasonableness. A
commissioner deciding whether or not to grant condonation exercises a (true)
discretion. A decision involving a discretion can never be clearly right or wrong.
Where the court is asked to review a decision taken in the exercise of a
discretion, it will not interfere unless the decision- maker failed to exercise the
discretion judicially, or arrived at a decision to which a reasonable decision
maker could not come.
Review Grounds
[15] The applicant contends that the jurisdictional ruling was incorrect and that, had
the commissioner properly dealt with the substantial merits of the dispute, she
would have concluded that the unfair labour practice was continuing and
repetitive.
[16] The applicant further contends that the decision refusing condonation ruling
was not one that a reasonable decision- maker would have reached. In his
affidavits, he contends that the commissioner ignored relevant evidence, mis -
applied the law, and failed to consider the interrelated nature of the traditional
condonation factors, including the interests of justice.
condonation factors, including the interests of justice.
3 City of Cape Town v Nevin and others (2022) 11 BLLR 1016 (LC) at par 56.
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[17] In Court , however, the applicant’s legal representative submitted that, unless
the Court were to hold that the dispute in question did indeed concern a
‘continuing wrong’ and that condonation was not required, the condonation
ruling would not be reviewable. In other words, to the extent that condonation
was indeed required, it was conceded that the referral was out of time and that
the Court was unlikely to interfere with the exercise of the commissioner’s
discretion.
[18] The applicant asks that the two rulings be set aside, and that the dispute be
enrolled for arbitration.
Evaluation
The Jurisdictional Ruling
[19] On the first ruling, the question is whether the commissioner was correct when
he found that the bargaining council lacked jurisdiction over the unfair labour
practice dispute.
[20] The unfair labour practice complained of was a demotion, which consisted in
the applicant being paid at salary level 8 instead of 9 from January 2010 to
June 2015. Whether or not the demotion was a ‘continuing wrong’, it did not
persist beyond June 2015, when the applicant was promoted to a post at salary
level 10 and remunerated at that level.
[21] The applicant ’s legal representative nevertheless submitted that the unfair
labour practice continued beyond 2015, because the earlier underpayment had
knock-on effects in relation to benefits and pension calculations. The applicant
continued to rely heavily on SABC v CCMA
4in which the Labour Appeal Court
recognised as a ‘continuing wrong’ a pay disparity based on race, where each
differential payment perpetuated unfair discrimination. The present matter is
distinguishable on the facts, as no discrimination was alleged.
[22] Inasmuch as the earlier failure to pay the applicant at the correct salary level
impacted on his subsequent benefits and pension, the Labour Appeal Court in
Amalungelo Workers Union5 the court between the act or omission complained
4 Note 1 above.
Amalungelo Workers Union5 the court between the act or omission complained
4 Note 1 above.
5 Amalungelo Workers Union obo Mayisela and others v CCMA and others (2022) 34 ILJ 600 (LAC).
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of which is said to constitute the unfair labour practice, and the consequences
that flow from the unfair labour practice. 6 The demotion ceased when the
applicant was promoted in June 2015 and any ongoing financial impact of that
alleged historic underpayment cannot be said to be a demotion. Rather, the
impact is a consequence of the alleged demotion.
[23] The referral of the dispute in July 2024 was thus well outside the 90-day period.
The bargaining council accordingly lacked jurisdiction in the absence of
condonation, and the jurisdictional ruling was correct.
The Condonation Ruling
[24] Despite the concession made by the applicant’s legal representative, I will
consider the question in respect of the ruling refusing condonation, which is
whether the third respondent commissioner properly exercised his discretion
and whether he reached a decision that a reasonable decision- maker could
reach.
[25] The commissioner considering the condonation application rejected the
contention that the dispute was continuous, holding that the cause of action,
being the underpayment of salary, was known to the applicant in early 2010. He
found that the delay was excessive. The explanation that the applicant
regarded the matter as ongoing did not justify the delay and amounted to no
reason at all, and he refused to grant condonation for the late referral.
[26] This is, in my view, a reasonable decision. On the undisputed facts, the unfair
conduct complained of ceased in June 2015 when the applicant was again
promoted and began to be paid on salary level 10. Even if the latest possible
date of the alleged unfair demotion is taken to be June 2015, the applicant
provided no explanation for the nine- year delay thereafter in referring the
matter. His application for condonation simply reiterated his disagreement with
the conclusion reached by the commissioner who issued the jurisdictional
ruling, in that he persisted in his view that the referral was not late.
ruling, in that he persisted in his view that the referral was not late.
6 See also National Education Health and Allied Workers Union obo Makhubele and Others v
Ramalatso N.O (JR642/20) [2025] ZALCJHB 162; (2025) 46 ILJ 1980 (LC) (13 May 2025).
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[27] In all the circumstances I am satisfied that the commissioner’s decision to
refuse condonation was made in the judicial exercise of his discretion and that
it is a decision which a reasonable decision-maker could reach.
Costs
[28] In their papers, both parties requested costs, but neither addressed the issue in
argument. In response to the Court’s query, counsel for the first respondent
submitted that an order for costs would be justified because the applicant’s
conduct (in making an extremely late referral and in persisting in a meritless
argument that condonation was not required) constituted an abuse of process.
[29] In considering costs, I must have regard to the requirements of law and
fairness, and to the conduct of the parties .7 It is well-established that, in labour
matters, costs do not automatically follow the result.
[30] In this case, while the applicant ultimately pursued a meritless argument, I do
not find his conduct to have been frivolous or abusive. The applicant is an
individual educator, who remains in employment, and who seeks to vindicate
his rights in respect of his employer , a government department. Balancing the
law and fairness, I make no order as to costs.
Order
[1] The application to review and set aside the jurisdictional and condonation
rulings is dismissed.
[2] There is no order as to costs.
_______________________
SJ Harvey
Judge of the Labour Court of South Africa
7 Section 162 of the LRA.
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Appearances:
For the Applicant: Mr Hlongwane of Mhlanga Incorporated
For the First Respondent: Adv T Khuzwayo instructed by the State Attorney