THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1913/22
In the matter between:
SOLIDARITY OBO P.F. VISAGIE Applicant
and
HARMONY GOLD MINING COMPANY LTD First Respondent
THE COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION Second Respondent
COMMISSIONER JAN LE FLEUR N.O. Third Respondent
Heard: 8 October 2025
Delivered: 10 April 2026 (This judgment was handed down electronically
by emailing a copy to the parties. The 10 April 2026 is deemed to be the
date of delivery of this judgment).
JUDGMENT
COLLIS AJ
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
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Introduction
[1] This is an application for the condonation for the late filing of the
Applicant’s Replying Affidavit, together with a R ule 11 application to
dismiss the R eview application of the First Respondent . The premise
upon which the Rule 11 dismissal is sought , is that the First Respondent
failed to prosecute and further such review.
[2] At the commencement of the proceedings, the parties were advised that
it would be prudent to first argue the condonation application and once
an order in this regard is made either way the parties will be appraised of
the extent of the affidavits to be considered in the pending Review
Application. This ruling follows an argument in respect of the condonation
application which was opposed.
Parties
[3] Solidarity herein acts on behalf of the Applicant. It is a Trade Union
registered as such in terms of the Labour Relations Act in terms of
section 96.
[4] The First Respondent is Harmony Gold Mining Company Limited; a
private Company duly registered in terms of the applicable legislation of
the Republic of South Africa. It shall hereinafter be referred to as
Harmony.
[5] The Second Respondent is the Com mission for Conciliation, Mediation
and Arbitration (‘CCMA’) established in term s of the Labour Relations
Act, 66 of 1995.
[6] The Third Respondent is Jan Fluer in his capacity as a Commissioner of
the First Respondent c/o the First Respondent’s main place of business.
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Background
[7] Harmony launched an application to review an arbitration award issued
by the Commission for Conci liation Mediation and Arbitration under case
number FSW 2381-21.
[8] On 15 May 2023, Solidarity launched an application to dismiss the
Review Application and to make the arbitration award an order of Court
on behalf of Mr. Visagie (Rule 11 Application’).
[9] On 29 May 2023, Harmony delivered its notice of intention to oppose and
its Answering Affidavit in opposition. In this regard a service affidavit was
deposed to by a candidate attorney on 5 June 2023.
[10] Thereafter and only on 17 August 2023, did the Applicant deliver its
Replying Affidavit to the Rule 11 Application.
[11] This, notwithstanding that the Applicant should have filed its Replying
Affidavit within five (5) days from the date on which the notice of intention
to oppose and the Answering Affidavit were delivered.
[12] The said Replying Affidavit having been filed late, Harmony proceeded to
file a Notice of O bjection to the late filing of the Applicant’s Relying
Affidavit in the Rule 11 Application on 18 August 2023 ( Notice of
Objection’).
[13] This prompted the Applicant on 7 September 2023, to deliver an
application seeking condonation for the late filing of its Replying Affidavit
in the Rule 11 Application.
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[14] It is trite that in an application for condonation, a deponent will be
required to address the following aspects:1
14.1 the degree of lateness or non- compliance in relation to the
prescribed time frames;
14.2 the explanation for the lateness or the failure to comply with the time
frame;
14.3 prospects of success in the main application and obtaining the relief
sought against the respondents; and
14.4 prejudice to the Respondents party.
Extent of the Delay
[15] As per the F ounding affidavit Harmony delivered its notice of intention to
oppose and Answering Affidavit on 29 May 2023 and as such any
Replying Affidavit should have been served on Harmony by no later than
5 June 2023. The Replying Affidavit , having only been delivered on 17
August 2023, was therefore two and a half months late.
[16] In addition to the above, and despite being aware that there is a need to
apply for Condonation, the said Condonation Application was only
however delivered approximately three (3) weeks after the delivery of
Harmony’s Notice of Objection. The total delay is therefore three (3)
months and 2 days.
Explanation for the Delay
[17] In the Founding affidavit, the deponent explains that the matter was
previously dealt with by Ms . Melissa Erasmus, a union official who has
since resigned, with her last working day being 26 June 2023. Ms.
1 Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) SA 345 (A) at 353A.
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Karolien Van Wyk , the deponent further explains that she was only
appointed in the position of Ms . Erasmus on 1 August 2023 and having
made enquiries as to the status of the present matter proceeded to draft
the Replying Affidavit on 17 August 2023.
[18] The deponent further sets out that the delay was not caused intentionally
by the Applicant but was as a result of new information contained in the
Answering Affidavit that necessitated the filing of a Replying Affidavit.
[19] The First Respondent refutes the assertions made by the Applicant as to
the reasons for the delay in filing the Replying affidavit timeously.
[20] In this regard Harmony alleges that as early as 14 June 2023, when Ms.
Erasmus was still in the employ of Solidarity , she emailed the attorneys
of Harmony informing them that she will proceed to set the matter down
on the opposed roll. This was before any Replying Affidavit was filed and
also at a time when Ms. Erasmus was still in the employ ment of
Solidarity. Thus, a month before she left such employment.
[21] This email correspondence directed to Harmony clearly indicates that at
no stage did Solidarity harbour the intention to file a Replying Affidavit , at
least not at the time when Ms . Erasmus informed Harmony that she will
proceed to set the matter down on the opposed roll.
[22] The affidavit deposed to by Ms. Van Wyk, fails to adequately explain why
no other official employed by Solidarity could assist with the matter of Mr.
Visagie in the absence of Ms . Erasmus and prior to Ms. Van Wyk taking
over the file. The affidavit also fails to explain the entire period of the
delay and flies in the face of an intention being expressed by Solidarity
that steps will be taken to enroll the application on the opposed motion
roll.
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[23] An Applicant is required to adequately explain the entire duration of the
delay and from what has been set out in the founding affidavit regarding
the delay, this Court cannot but conclude that the Applicant never
intended to deliver a Rep lying Affidavit and that it would appear that this
need only arose when Ms . Van Wyk took over the matter and suggests
to be a mere afterthought.
[24] For the reasons alluded to above, this Court concludes that the
explanation for the delay is wholly inadequate.
Prospects of success
[25] In respect of the Applicant’s prospect of success, as per the founding
affidavit, the deponent sets ou t that the Applicant enjoys good prospects
of success. To this end the Applicant merely avers as follows:
“… …The prospects of success of the rule 11 application are more fully
explained in the founding affidavit filed herein.”
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[26] The mere say so, of enjoying good prospects of success without
expanding what those prospect entails is insufficient absent any reference
to the supporting facts justifying such contention.
[27] It is for these reasons that this Court cannot conclude that the
requirement of prospects of success has been met.
Prejudice
[28] In respect of prejudice, the deponent alleges that Harmony will not suffer
any unreasonable prejudice should the condonation application be
granted as the Respondent has already opposed the Review Application.
2 Founding Affidavit para 23.
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[29] This stance adopted by the Applicant is however not entirely correct as it
already has made an election not to file a Replying Affidavit and as such
the pleadings in the Review Application had closed.
[30] In contrast, if this Court is to permit the filing of the Replying Affidavit this
will amount to the reopening of pleadings whereas Harmony will be
entitled to finality in respect of its pending Review Application.
Order
[31] For the reasons alluded to above, this Court is not persuaded that the
Applicant has met the requirements and is entitled to be granted
condonation and as such the following order is made:
31.1 The Condonation application is dismissed.
31.2 No order as to costs.
_______________
COLLIS AJ
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Karla Endres (Solidarity Official)
Instructed by: Solidarity
For the Respondent: Victor Mndebele
Instructed by: Webber Wentzel