IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JS714/23
GLADMAN LUYANDA MPAKO Applicant
and
SOUTH AFRICAN ELEVATOR COMPANY (PTY) LTD Respondent
Heard: 4 November 2025
Delivered: 18 March 2026
JUDGMENT
PHAJANE, AJ
Introduction
[1] Justice delayed is not merely justice denied, it is justice distorted. This
application comes before the Court burdened not by complexity, but by
avoidable delay attributable to those entrusted with its diligent prosecution.
[2] This is an application for condonation for the late filing of the applicant’s
statement of case, which was delivered approximately two years and ten
months out of time.
[3] The respondent did not file opposing papers, however, the respondent sought
to argue the matter from the bar. At the hearing of the matter, I asked the
respondent’s counsel to explain the failure to file opposing papers and why
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
18-03-2026
Signature Date
2
the respondent thought it was a good idea to seek to argue the matter from
the bar. Advocate Blumenthal stated that she was briefed late, and the
explanation is that since the application was interlocutory in nature, the
respondent was under no obligation to file an answering affidavit. That
contention is unsustainable. The fact that an application is interlocutory does
not dispense with the requirement that a party opposing relief must place its
version before the Court under oath. In the absence of an answering affidavit,
the factual averments made by the applicant stand largely unchallenged and
are therefore accepted for the purpose of the application.
[4] The Labour Court Rules envisage that opposition to applications, whether
interlocutory or final, must ordinarily be set out in an answering affidavit
1. The
Court requires a properly filed affidavit to consider the respondent's version; a
mere assertion, unsupported by affidavit, is insufficient to constitute
opposition.
[5] Accordingly, I proceed to consider the condonation application on the basis of
the applicant’s founding affidavit, noting the absence of any formally filed
opposition.
The Applicable Legal Principles
[6] The Court has a wide judicial discretion to grant condonation if it would be in
the interest of justice to do so after considering the following interrelated
factors: the degree of lateness; the explanation for the delay ; and t he
prospects of success in the main dispute
2. The Labour Court has also, at
various times, given additional consideration to the following ancillary factors:
relative prejudice to the other party and the court, as well as the importance of
the case. These foundational principles, reflected in Melane 3, requires a full
and satisfactory explanation covering the period of delay.
1 Rule 35 (6) and (7) of the Rules Regulating the Conduct of the Proceedings of the Labour Court,
2024.
2 Steenkamp & Others v Edcon Ltd (2019) 40 ILJ 1731 (CC); See also Chetty v Baker McKenzie
2 Steenkamp & Others v Edcon Ltd (2019) 40 ILJ 1731 (CC); See also Chetty v Baker McKenzie
(2022) 43 ILJ 1599 (LAC); Melane v Santam Insurance Co Ltd (Melane) 1962 (4) SA 531 (A).
3 Supra.
3
[7] Condonation is not merely for the asking 4. The applicant bears the onus to
establish that an indulgence should be granted 5. The Court in Thilivali added
the following consideration when evaluating condonation applications in
reviews:
‘It must also always be considered that the applicant for condonation actually
bears the onus to prove good cause for condonation to be granted in terms of
the principles set out above. There is, however, an additional consideration
which applies in employment disputes in determining whether an applicant for
condonation has discharged this onus. This is the fundamental requirement of
expedition. The Constitutional Court has, as a matter of fundamental
principle, confirmed that all employment law disputes must be expeditiously
dealt with and any determination of the issue of good cause must always be
conducted against the backdrop of this fundamental principle in employment
law.’
Degree of Lateness
[8] According to the papers , the application is approximately two years and two
months out of time.
[9] However, the record reveals that the application for condonation and the
statement of case were not filed immediately upon being signed before the
commissioner of oaths on 6 December 2023, rather, they were filed
approximately four months later on 2 May 2024.
[10] Accordingly, t he delay in this matter is approximately two years and ten
months.
[11] Clearly, the delay is not merely substantial, it is egregious. Such a delay calls
for an exceptionally compelling and comprehensive explanation.
Explanation for the Delay
4 Groot v National Prosecuting Authority & another (2014) 35 ILJ 121 (CC).
5 National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco
Group) & others (Thilivali) (2015) 36 ILJ 232 (LC) at para 22.
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[12] Following the applicant’s retrenchment on 9 April 2021, the applicant
approached his legal insurance provider , Legal Wise, for assistance. Legal
Wise referred the applicant to a firm of attorneys, Kitching Attorneys ( former
attorneys), for a consultation. With their assistance, the applicant referred an
unfair dismissal dispute to the C ommission for Conciliation, Mediation and
Arbitration (CCMA) for conciliation. Following the issuance of a certificate of
non-resolution on 23 April 2021, the applicant was required to file a statement
of case within 90 days6.
[13] Instead of referring the dispute to the Labour Court for adjudication, t he
applicant’s dispute was referred for arbitration on 30 April 2021.
[14] The matter was enrolled for ar bitration on 6 July 2021, and unbeknown to the
applicant, his former attorneys sought postponement of the matter on 5 July
2021 and advised the applicant not to attend the CCMA on 6 July 2021.
[15] The applicant’s former attorneys attended at the CCMA on 6 July 2021. The
record reflects that on 6 July 2021 the attorney called the applicant and how
many employees were retrenched, to which the applicant stated that it was
about five.
[16] Subsequently, the applicant was informed by the attorney that the matter was
postponed due to covid related reasons. On 23 July 2021, the applicant was
advised that the dispute had to be referred to the Labour Court.
[17] On 4 October 2021, the applicant’s former attorneys forwarded an affidavit to
the applicant for signature before a commissioner of oaths . The applicant duly
attended to sign and commission the said affidavit and returned it to his
former attorneys on the same day.
[18] Subsequently, the applicant made various telephone calls to follow up on his
matter without success, which led to the applicant directing his request to
Legal Wise to follow up with the former attorneys on 19 April 2022. The
applicant persisted in enquiring about his matter, with the last correspondence
applicant persisted in enquiring about his matter, with the last correspondence
6 Section 191(11) of the Labour Relations Act 66, 1995, as amended (LRA).
5
being a WhatsApp message to Mr Kitching of the former attorneys on 14
September 2022.
[19] On 1 November 2022, Legal Wise instructed Brown, Braude and Vlok Inc
(BBV Inc.) to act as a post box in the applicant’s matter. This was confirmed
by Brown, Braude and Vlok Inc in an email dated 10 November 2022. From
this email, it appears that the former attorneys remained as the instructing
attorneys and BBV Inc would merely follow their instructions from time to time
in order to update the applicant.
[20] On 21 November 2022, the applicant addressed an email to BBV Inc in which
the applicant confirmed that he spoke to Mr Kitching , who promised a swift
response to his matter.
[21] On 6 December 2022, there was still no feedback from the former attorneys.
[22] In January 2023, a gentleman who identified himself as Willem informed the
applicant that the attorney who was dealing with his matter had left Kitching
Attorneys and was no longer employed at their firm. When this was brought to
the applicant’s attention, the applicant contacted Legal Wise in order to get
clarity on his matter.
[23] The applicant also followed up with Kitching Attorneys on 10 January 2023,
and the applicant was advised that documents would be sent out to BBV the
next day.
[24] On 11 January 2023, the applicant advised BBV Inc that he spoke to Mr
Kitching on 10 January 2023 and that he promised to send documents to BBV
Inc for signature by the end of that week.
[25] On 13, 18 and 24 January 2023, respectively, the applicant followed up again
with his former attorneys, with no response. The former attorneys remained
unresponsive to the applicant’s request for documents until March 2023, when
the applicant submitted a formal complaint to Legal Wise.
[26] On 29 March 2023, the applicant received a response to his complaint, in
terms of which the applicant was advised that the case at the CCMA was
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withdrawn. According to the applicant, this revelation shocked him because
the applicant was not aware that the referral to the CCMA was withdrawn,
however, he was under the impression that his case was merely
referred/redirected to the Labour Court.
[27] Legal Wise advised that the applicant’s matter was being investigated and
that the former attorneys would no longer represent him.
[28] Subsequent to consultations with Legal Wise and them re -evaluating the
applicant’s matter, Legal Wise instructed BBV Inc on 31 July 2023 to provide
an opinion on the applicant’s prospects of success in the litigation.
[29] The applicant consulted with one Ms Van Rensburg of BBV Inc on 30 August
2023. During the consultation, it became clear that an investigation was
necessary as there were more questions than answers and further,
documents had to be sourced.
[30] The applicant forwarded all the documents in his possession to BBV Inc for
consideration, whereupon he was advised that his matter had to be discussed
with the director of the firm , Mr Craig Jessop, to give his opinion on the
prospects of success in order to proceed with the matter.
[31] On 18 September 2023, BBV Inc requested documents from the CCMA. On
26 September 2023, the CCMA provided the requested documents. The
applicant saw the notice of withdrawal as attorneys of record by his former
attorneys of record for the first time when the CCMA provided the requested
information.
[32] On 28 September 2023, BBV Inc addressed a communication to Kitching
Attorneys to obtain clarity on the matter.
[33] On 4 October 2023, the former attorneys responded to BBV Inc's
communication. The information received from them revealed inter alia that
Kitching Attorneys had prepared a review application in circumstances where
there was no award or ruling to form the subject matter thereof.
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[34] The applicant was advised that the appropriate manner to proceed was by
way of a statement of case and a condonation application.
[35] The timeline formed the subject matter of discussion with Mr Jessop on 31
October 2023, and the papers were finalised on 22 November 2023.
[36] In summary, the explanation advanced by the applicant’s counsel at the
hearing of the matter is that the delay in the filing of the statement of case is
attributable neither to the wilful disregard of the Rules of this Court nor to
indifference on the part of the applicant, but rather by the applicant’s former
attorneys who referred the matter to the CCMA rather than the Labour Court,
their failure to exercise adequate professional oversight, compounded by
administrative and bureaucratic delays within Legal Wise, which is the
applicant’s legal insurance provider.
[37] No explanation has been furnished for the delay between the completion of
the papers on 22 November 2023, the signing of the papers on 6 December
2023 and their eventual filing on 2 May 2024. I accept that the applicant was
probably not aware of this further period of delay, as the applicant signed the
affidavit in support of this application on 6 December 2023. A supplementary
affidavit ought to have been submitted by the attorneys explaining this further
delay of some four months.
[38] It is evident that the explanation tendered for the period of delay is bereft of
sufficient detail. Material periods of delay , such as 23 July 2021 to October
2021, 4 October 2021 to 19 April 2022 and 14 September 2022 to 1
November 2022, have remained completely unexplained, and the applicant
has tendered no version as to what happened during those periods, especially
when one considers the inordinate period of delay . These are not the only
examples of the unexplained material periods of delay, as the record shows.
[39] There is likewise no satisfactory explanation between 29 March 2023 and July
[39] There is likewise no satisfactory explanation between 29 March 2023 and July
2023, a period said to have been occupied by Legal Wise’s request for an
opinion on prospects of success on the applicant’s matter, Legal Wise
launching an investigation into the matter and a further opinion on the
8
prospects of success by the director of the firm. This explanation is illogical
and not borne out by the evidence.
[40] The record discloses that the applicant took some steps to pursue the matter
and placed reliance on the legal representatives to advance the litigation. The
reliance was met with fundamental misunderstanding of the applicable law,
inattention, avoidable delays, and clearly Legal Wise internal procedural
obstacles, which materially contributed to the non- compliance with the
prescribed time periods.
[41] While the Court is mindful of the operational demands faced by legal practices
and legal insurance providers, such considerations cannot excuse a failure to
comply with statutory time frames under the Labour Relations Act
7, (the LRA).
Legal practitioners who accepts instructions through entities such as Legal
Wise remain personally responsible for the diligent conduct of their clients’
matters and for compliance with the Rules of this Court.
[42] Regrettably, the applicant’s matter was allowed to drift into procedural non -
compliance, not through complexity or unavoidable circumstance, but through
inadequate management and lack of professional diligence.
[43] The applicant is not entirely blameless in the circumstances. A litigant cannot
entirely distance himself from the conduct of his representatives, particularly
where he is aware of the deficiencies in the manner in which the matter is
being handled. On the applicant’s own account, he was aware that the matter
was not receiving proper attention. Despite this, he continued to rely on the
same attorneys without taking meaningful steps to safeguard his position until
very late in March 2023 when he submitted a formal complaint to Legal Wise.
[44] The Court also notes that the applicant elected to continue being represented
by the same att orneys appointed by Legal Wise despite the consequences of
their earlier lapses in professional standards. The applicant’s choice to
their earlier lapses in professional standards. The applicant’s choice to
continue with the attorneys appointed by Legal Wise, is difficult to reconcile
with prudent decision making. Despite this, t he Court acknowledges that the
7 Act 66 of 1995, as amended.
9
applicant was at the mercy of the legal insurer, nonetheless, the decision
cannot be ignored when assessing the applicant's own conduct in these
proceedings.
[45] The absence of confirmatory affidavits further weakens the explanation. At the
very least the applicant ought to have obtained a confirmatory affidavit from
Legal Wise and the current attorney s to the extent that they were involved. In
these circumstances , the applicant has not provided a full and satisfactory
explanation covering the period of delay.
[46] The delay is evidently excessive. An applicant seeking condonation is
required to furnish full, detailed and accurate explanation covering the entire
period of the delay. The explanation advanced in this instance is
unsatisfactory and fails to account adequately for significant portions of the
delay. It falls short of establishing good cause.
[47] Notwithstanding the inordinate delay, which may on the face of it justify
refusal of condonation, the Constitutional Court has stated that these factors
are not necessarily dispositive of condonation and that other factors relevant
to the application may favour the granting of condonation and may tilt the
interest of justice to the other side of the scale
8.
[48] The record shows that the applicant showed interest in his matter , maintained
contact with the attorneys’, prompted updates and s ought action, yet the
delays stems largely from the lack of responsiveness on the part of the former
attorneys, the current attorneys by filing the papers four months after they
were filed and not explaining this delay and the legal insurer. The
responsibility for the delay cannot rest with him only.
[49] In the circumstances, I proceed to consider the prospects of success.
Prospects of Success
[50] Although the delay is excessive and the explanation for the delay is not
sufficiently and convincingly set out, when considered with the prospects of
sufficiently and convincingly set out, when considered with the prospects of
8 Mphephu-Ramabulana and Another v Mphephu and Others [2021] ZACC 43; 2022 (1) BCLR 202
(CC).
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success, the respondent’s failure to follow the correct procedures when
dismissing the applicant, the prejudice that he would suffer should this
application be dismissed and the fact that he clearly continued to show
interest in asserting his right s, I am of the view that it is in the interest of
justice to grant condonation.
[51] The applicant is only required to show prima facie prospects of success. The
respondent did not comply with the provisions of section 189 of the LRA in
that the applicant was not properly consulted; alternatives were not properly
explored, and a proper criteria was not followed. This has a bearing on both
procedural and substantive fairness of the dismissal. In the circumstances, a
prima facie basis for prospects of success has been established.
Conclusion
[52] Weighing all the relevant factors, it is in the interest of justice to grant
condonation.
Order
1. The application for condonation is granted.
2. There is no order as to costs.
_____________
GK Phajane
Acting Judge of the Labour Court of South Africa
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Appearance
For the Applicant: Adv. Rushay Koovertjie
Instructed by: Brown Braude & Vlok Inc.
For the Respondent: Adv. Roxanne Blumenthal
Instructed by: Thomas Minnie Attorneys