THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR1788/19
In the matter between:
MUFAMADI, NA Applicant
and
SAAYMAN, H N.O. First Respondent
EDUCATION LABOUR RELATIONS COUNCIL Second Respondent
DEPARTMENT OF EDUCATION: MPUMALANGA Third Respondent
Heard: 4 March 2025
Delivered: 17 April 2026
JUDGMENT
MARTIN, AJ
[1] This is : (a) an unopposed application for condonation for the late filing of a
review application ; together with (b) an unopposed application in terms of
sections 145 and 158(1)(g) of the Labour Relations Act 1 (LRA) to review a
1 Act 66 of 1995, as amended.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
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Signature Date
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condonation ruling made by the first respondent in which he dismissed an
application for condonation for the late referral of a dispute to the second
respondent.
[2] The facts in this matter are convoluted, and the applicant’s papers are silent
on various aspects of the background chronology that might shed some light
on the events that led up to the applications before me. They are also, in other
respects, contradictory, as I set out below.
[3] The applicant’s founding affidavits in the review and condonation applications
do not set out the applicant’s position with the third respondent (the
Department) at the time that the dispute between them arose. As best I can
tell from the annexures to the founding affidavit s in the review and
condonation applications,
2 the applicant was then a Deputy Chief Education
Specialist with the Department , and he resigned with effect from 31 August
2018.
The Condonation application before the Second Respondent:
[4] On 28 September 2017 the applicant directed correspondence to the Director
of HR Benefits of the Department complaining that it “ came to [his] attention”
that his pay progression for the years of 2011 to 2015 had not been
processed. He requested that his pay progression be reviewed. He would
later assert in arbitration proceedings that this request constituted a formal
grievance.
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[5] On 18 November 2017 his request was rejected on the basis that he had
failed to submit the relevant documents to secure pay progression in the
periods in question.
[6] On 21 November 2017 the applicant, dissatisfied, made another request for a
review of his pay progression. This request was also rejected on 23 March
2018.
2 Annexure “G” to the review application at p27 of the review bundle, and annexure O to the
condonation application, p79, paragraph 8 of the condonation bundle.
3 Page 47 of the review bundle, paragraph 6 of an interim ruling.
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[7] A month later, on 24 April 2018, he submitted a grievance which the
Department did not entertain as it was purportedly not lodged in accordance
with its grievance rules and procedures, and within a 90 day period prescribed
by the Department’s rules and procedures . The Department informed him of
this on 22 May 2018.
[8] On 5 June 2018 t he applicant referred a dispute to the second respondent ,
which he classified as a dispute relating to the interpretation and application of
a collective agreement. It seems that thereafter the referral was entertained
as a dispute relating to an unfair labour practice, and this is evident from the
applicant’s founding affidavit.
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[9] On 14 November 2018, and pursuant to an interim ruling, the applicant filed
an application for condonation 5 in which he: (a) contended that his referral
was 271 days late; and (b) gave as his explanation that he had been engaged
in “internal procedures ” with the employer. This is important, because the
applicant, in his founding affidavit in the review application, contends that he
did not require condonation at all as his dispute was referred timeously.
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[10] The Department opposed the condonation application and asserted that in the
years 2010/2011; 2011/2012; 2012/2013; 2013/2014 and 2014/2015 the
applicant had failed to submit the necessary performance agreements and
assessments for pay progression, and that he had not received the pay
progression in these years, with the clear implication being that he must have
known that his pay was not progressing. He did not lodge grievances within
the 90- day period required under the Department’s policies for any of the
years in question, and he waited to raise a cumulative complaint in September
2017 and lodge a formal grievance in April 2018.
[11] In his replying affidavit, the applicant adjusted his version, and contended that
his referral was in time, and contended that he only learned of the failure to
his referral was in time, and contended that he only learned of the failure to
process his pay progression in October 2017 ( he had earlier alleged that he
had learned of it in September 2017).
4 Paragraph 5, p7 of the review bundle.
5 Annexure N to the review application, p49 of the review bundle.
6 P11, para 8.11.
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[12] On 18 January 2019 t he first respondent delivered a condonation ruling in
which he dismissed the application for condonation. The first respondent,
clearly preferring the Department’s version, found that the applicant’s version
was not plausible, that the pay progression periods would have been effected
or not effected in each of the years in question, and that the referral was some
four years late. I am not certain that the first respondent’s calculation of the
extent of the delay is correct, but for the reasons I set out below, this is not
material.
The condonation application before this court:
[13] The applicant should have served and filed the review application by no later
than 1 March 2019. He did not.
[14] He asserts that he learned of the ruling on 5 February 2019, and that after this
he decided to utilise the services of alternative attorneys.
[15] He only secured the services of alternative attorneys on 2 April 2019 after he
secured funds. At this stage the review application would have been one
month late.
[16] He and his new attorneys then engaged in a back and forth to obtain the file
from the applicant’s previous attorneys. On 9 April 2019 the applicant’s
previous attorneys recorded that the file was available for collection.
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Notwithstanding this, the parties only secured the file by courier on 10 May
2019. At this stage the review application would have been approximately two
months late.
[17] At this point the explanation in the founding affidavit ends. The applicant
asserts that on receiving the file his attorneys prepared the review and
condonation applications and that the review application is 99 days late, which
is inserted in manuscript in the founding affidavit.
8 However this is not the
case.
7 Annexure E to the condonation application, condonation bundle, p24.
8 Condonation bundle, p09.
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[18] The founding affidavit in the review application was deposed to 31 July 2019,
and the founding affidavit in the condonation application was deposed to on 7
August 2019, three months after the attorneys obtained the file, and at which
stage the review would have been more than five months late.
[19] The notices of motion in the condonation and review applications were signed
on 14 August 2019, at which stage the review application was 168 days, or
five and a half months, late.
[20] In a service affidavit deposed to by the applicants then attorneys on 8 April
2020, the assertion is made that the review and condonation applications
were served on 14 and 20 August 2019, however the applications are both
stamped, and were seemingly only filed (an act which completes delivery ) on
15 November 2019, some 259 days or eight and a half months late.
[21] If I take the date of the signature of the notice of motion as the end date,
some three months of delay are unexplained. If I take the date of filing as the
end date, some six months of delay are totally unexplained.
[22] It is evident that the applicant has not put forward a reasonable explanation
for his delay in filing the review application.
The principles and application to the facts:
[23] In NUM v Council for Mineral Technology 9, the Labour Appeal Court (LAC)
confirmed the approach in Melane v Santam Insurance Co Limited 10 as the
approach to adopt when considering condonation applications: The factors to
be considered are: (a) the degree of lateness; (b) the explanation for the
delay; (c) the prospects of success; and (d) the prejudice to both parties. It set
out a further principle that without a reasonable and acceptable explanation
for the delay, the prospects of success are immaterial. 11 This principle was
confirmed in National Education Health and Allied Workers Union on behalf of
9 [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC)
10 1962 (4) SA 531 (A) at 532C - F.
11 Id fn 9 at para 10.
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Mofokeng and others v Charlotte Theron Children’s Home 12, where the LAC
held that, without a reasonable and acceptable explanation for a delay, the
prospects of success are immaterial.
[24] In summary: the Courts have endorsed the principle that where there is a
delay with no reasonable, satisfactory, and acceptable explanation for the
delay, condonation may be refused without considering prospects of success,
and to grant condonation where the delay is not explained may not serve the
interests of justice. In Grootboom v National Prosecuting Authority and
Another13, the Constitutional Court held that the standard for considering an
application for condonation is the interests of justice. It found that the concept
of “the interests of justice” is so elastic that it is not capable of precise
definition but includes:
‘the nature of the relief sought; the extent and cause of the delay; the effect of
the delay on the administration of justice and other litigants; the
reasonableness of the explanation for the delay; the importance of the issue to
be raised in the intended Appeal; and the prospects of success.’
[25] The Constitutional Court held that the ultimate determination of what is in the
interests of justice must reflect due regard to all of the relevant factors, with
the particular circumstances of each case determining which of them are
relevant.14
[26] The delay is not trivial, and in the circumstances a comprehensive explanation
for the delay is required. W ithout a reasonable explanation for delay (and for
much of the delay period there is no explanation at all) I am not enjoined to
consider the applicant’s prospects of success. However, for completeness, I
am not satisfied that the applicant’s prospects of success are such that it
would be in the interests of justice to grant condonation.
[27] The applicant accepted in his condonation application before the first
respondent that his referral was late. His failure to refer the unfair labour
respondent that his referral was late. His failure to refer the unfair labour
12 (2004) 25 ILJ 2195 (LAC) at para 23.
13 2014 (1) BCLR 65 (CC) at para 22.
14 Ibid at para 22.
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dispute pending his repeated internal approaches to the Department do es not
constitute a reasonable explanation for his failure to refer the dispute
timeously, unless the parties were subject to an agreement requiring them to
exhaust defined internal remedies (a case not made out on the papers).
[28] Notwithstanding the dispute about whether the delay should be calculated
from the years in which his pay progression was not processed , or from when
he purportedly became aware of the dispute, it is evident that his referral to
the second respondent was late, that he at face value did not have a good
reason for being late, and that his version changed before the first respondent
(and has also changed before this court where he again contends that no
condonation was required notwithstanding the contents of his condonation
application before the first respondent) all of which would have contributed to
a reasonable finding that his version on the delay was implausible and
unsatisfactory.
[29] In the circumstances, I am of the view that it is not in the interests of justice
that condonation be granted.
[30] In the result, the following order is made:
Order
1. The applicant’s application for condonation is dismissed.
2. The applicant’s review application is struck from the roll.
3. There is no order as to costs.
____________________________
H. W. S Martin
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Nikita Schroeder of Higgs Attorneys