IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: J867/23
In the matter between:
GRACE SKIN & WELLNESS CC Applicant
and
TAMARA LEE MOEN Respondent
In re
TAMARA LEE MOEN Applicant
and
GRACE SKIN & WELLNESS CC Respondent
Heard: 4 March 2025
Delivered: 21 April 2026
JUDGMENT
MARTIN, AJ
[1] The applicant (the applicant or Grace Skin) is the respondent in the main
referral, and the respondent (the respondent or Ms Moen) is the
applicant in the main referral . The main referral is a claim by Ms Moen
against Grace Skin for commission payments and leave pay.
(1) Reportable: NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[2] The applicant seeks condonation for the late filing of a statement of
response in the main action.
[3] On 3 July 2023 Ms Moen issued a statement of claim, which was served
on Grace Skin on 5 July 2023, and filed on 7 July 2023.
[4] The applicant’s statement of response was to be served and filed by 19
July 2023, and with Ms Moen’s consent , the date of delivery was
extended to 31 July 2023.
[5] On 31 July 2023, Grace Skin emailed the statement of response to Ms
Moen’s attorneys and it emailed the pleading to Ms Francinah Ntuli of the
Labour Court. It did not thereafter physically file the statement of
response at Court, until the events set out below.
[6] The parties are of the view that pleadings had been exchanged 1,
engaged in pre- trial preparation, and an extensive pre- trial engagement
ensued.
[7] On 15 August 2024, a pproximately a year after the applicant emailed its
statement of response to Ms Ntuli , Ms Moen’s legal representatives
addressed correspondence to the applicant’s representatives and
informed them that they had attended to c ourt to prepare the court file ,
and noted that the statement of response had not been filed in the court
file. The applicant was requested to ensure that the pleading was filed.
[8] The applicant contends that on 16 August 2024, its representatives
attended court and filed the statement of response.
2 The applicant has
attached to its founding affidavit a copy of an email dated 16 August
2024 to which pictures a re attached each of which show in turn: (a) a
filing notice; (b) a service affidavit; and (c) the first page of the statement
of response, each of which appear to have been stamped by the court on
“2024-08-16”.
1 See paragraph 57 of Ms Moen’s answering affidavit.
2 Paragraph 18.3 of the founding affidavit.
3
[9] However, t he respondent’s attorneys would attend court again after 16
August 2024, and in correspondence dated 26 August 2024, they
asserted that on inspection of the court file, they were only able to locate
the filing notice and the service affidavit. 3 Because of this, the
respondent requested that the file be taken to a Judge for a directive.
[10] Acting Justice Kumalo, presumably on the strength of a submission or
representation that the statement of response had not been physically
filed, issued a directive that the applicant was to file its original statement
of response together with an application for condonation. The directive is
dated 7 October 2024.
[11] In these circumstances, the application for condonation has come before
the Court.
[12] Before dealing with the application, I mention that the court file contains
an indexed and paginated bundle titled “INDEX TO PLEADINGS ”. The
bundle was filed and stamped on 14 August 2024, presumably the day
that Ms Moen’s representatives were first informed that the statement of
response could not be located in the Court file. The bundle contains a full
complement of pleadings, including the statement of response, and a
copy of a signed pre-trial minutes.
[13] In other words: At the time that the directive was sought from Acting
Justice Kumalo, at a date after 16 August 2024, a fully indexed and
paginated pleadings bundle was in the Court file and, on the back of the
pleadings, a pre- trial meeting had resulted in the preparation of pre- trial
minutes.
[14] These factors are important. Firstly, and notwithstanding that the
applicant failed to physically file its statement of response on 31 July
2023, the irregularity did not pose an obstacle to the parties’ preparation
for trial . Secondly, at the time that Acting Justice Kumalo was
3 Paragraph 65 of the answering affidavit.
4
approached for his directive, a copy of the statement of response was, as
a matter of fact, in the court file as a component of the pleadings bundle.
[15] In NUM v Council for Mineral Technology 4, the Labour Appeal Court
(LAC) confirmed the approach in Melane v Santam Insurance Co
Limited5 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.
6 This principle was confirmed in the
National Education Health and Allied Workers Union on behalf of
Mofokeng and others v Charlotte Theron Children’s Home 7, where the
LAC held that, without a reasonable and acceptable explanation for a
delay, the prospects of success are immaterial.
[16] 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 Another 8, 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.’
4 [1998] ZALAC 22; [1999] 3 BLLR 209 (LAC)
5 1962 (4) SA 531 (A) at 532C - F.
6 ibid fn 4 at para 10.
5 1962 (4) SA 531 (A) at 532C - F.
6 ibid fn 4 at para 10.
7 [2004] ZALAC 9; (2004) 25 ILJ 2195 (LAC) at para 23.
8 [2013] ZACC 37; 2014 (1) BCLR 65 (CC) at para 22.
5
[17] 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.9
[18] Within this context, the applicant contends that it has reasonable
prospects of success ; that Ms Moen has not suffered any significant
prejudice; and that the delay was not frivolous, sufficient to cause
discomfort to the court, or significant enough to cause a delay in the
finalisation of the matter.
[19] Ms Moen on the other hand contends that the applicant is obliged to
provide a reasonable explanation for the entire length of the delay, from
31 July 2023, until the original statement of response was filed in
consequence of Acting Justice Kumalo’s directive. She asserts that this
has not been done. Furthermore, in argument her counsel submitted that
I should also take into account that Ms Moen is of the view that unrelated
conduct by the applicant delayed the finalisation of the pre- trial minute.
That may or may not be the case, but it has no bearing on the matters
before me.
[20] It seems to me that the dispute is fundamentally artificial . In Rayal
Industrial (Pty) Ltd v Haroon Abdul Magid Khan
10, Acting Justice
Domingo of the High Court held the following:
‘[14] In avoiding an overly technical approach in determining whether
to grant the condonation, I am reminded of the dictum in the
case of Louw v Grobler and Another which is often cited as the
“universal compass in cases in which court orders, rules and
process are abused, manipulated and not observed”; the dictum
is as follows:
“The purpose of the uniform court rules is to regulate the
litigation process, procedure and the exchange of
pleadings. The entire process of litigation has to be
9 Ibid at para 22.
10 Unreported: 076126/2023.
6
driven according to the rules. The rules set the
parameters within the course of litigation has to proceed.
The rules of engagement, must, therefore, be obeyed by
litigants. However, dogmatically rigid adherence to the
uniform court rules is as distasteful as their flagrant
disregard by the litigants. Dogmatic adherence, just like
flagrant violations, defeats the purpose for which the
court rules were made. The prime purpose of the court
rules is to oil the wheels of justice in order to expedite the
resolution of disputes. Quibbling about trivial deviations
from the court rules retards instead of enhancing the civil
justice system. The court rules are not an end in
themselves.”
[15] While I am mindful of the almost four month delay in filing of the
answering affidavit; in the pursuit of a just outcome in this matter,
weighing up the interest of both parties, and taking into account
the nature of this matter, I am of the view that granting the
condonation will not severely prejudice the applicant. The
applicant has filed a replying affidavit and filed heads of
argument taking cognisance of the submissions made in the
respondent’s answering affidavit. Thus, in the premises, having
read the papers filed on record and having heard the applicant’s
counsel and the respondent himself, in the interest of justice, I
grant the condonation of the late filing of the answering affidavit.’
[21] The primary purpose of the rules relating to the delivery of pleadings and
notices is to ensure that the parties are aware of an initiating process and
the subsequent documents that are served in the course of the litigation.
The applicant’s failure to physically file the original statement of claim
was no doubt a failure to comply with the rules , however it is evident that
the electronic service satisfied the requirement that the statement of
response come to the claimant’s attention, notwithstanding that the
physical filing of the statement of response was delinquent.
physical filing of the statement of response was delinquent.
[22] The subsequent year-long engagement in pre- trial procedures, including
the signing of pre- trial minutes, demonstrates that both parties
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proceeded to prepare on the belief that the issues were properly
ventilated by the pleadings, and the delay in physical filing did not
materially impede the progress of the matter, so much so that Ms Moen’s
representatives prepared a pleadings bundle comprising both the
pleadings and the signed minutes, even before the applicant’s failure to
physically file the pleading became a controversy. In the circumstances,
the delay in filing the original pleading did not cause material prejudice to
the parties.
[23] It appears from the email attached to the applicant’s founding affidavit
that the statement of response was filed on 16 August 2024, before
Acting Justice Kumalo was approached for a directive. I do not doubt the
respondent’s attorneys that they could not thereafter locate the pleading
in the Court file, but it would make little sense for the applicant to attempt
to remedy the i rregular filing by having the filing not ice, the service
affidavit, and the statement of response stamped and photographed, only
to thereafter remove the physically filed pleading from the court file.
[24] Furthermore, there are, as is apparent from the pleadings and the pre-
trial minute, triable issues between the parties.
[25] In these circumstances, the grant of condonation will not result in any
material prejudice to the respondent . However, the refusal of
condonation would serve no purpose other than to preclude the applicant
from participating in a trial for which both it and the respondent have
prepared based on the pleadings that have been exchanged. Such an
outcome would not be in the interests of justice.
[26] I am satisfied that it is in the interests of justice that condonation be
granted for the applicant’s late filing of the statement of response.
[27] In my view there are no reasonable grounds to depart from the general
rule relating to costs in this Court.
[28] In the result, the following order is made:
8
Order
1. The applicant’s late filing of its statement of response is
condoned.
2. There is no order as to costs.
____________________________
HWS Martin
Acting Judge of the Labour Court of South Africa
9
Appearances:
For the Applicant: AJ Swanepoel
Jay Inc Attorneys
For the Respondent: S Francis
Lee Wrench Attorneys