___________
Signature
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case no: D340/2023
In the matter between:
THE NATIONAL BARGAINING COUNCIL FOR THE First Applicant
ROAD FREIGHT AND LOGISTICS INDUSTRY
SIYAMBATHA MANYAL AND 26 OTHERS Second and Further Applicants
and
VASHNEE NAIDOO N.O. First Respondent
THE NATIONAL BARGAINING COUNCIL FOR THE Second Respondent
ROAD FREIGHT AND LOGISTICS INDUSTRY
JOHDEL TRADING (PTY) LTD T/A Third Respondent
RECYCLING SERVICES
Heard: 26 June 2025
Delivered: 13 April 2026
JUDGMENT
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
_ 13 April 2026
Date
2
OOSTHUIZEN, AJ
Introduction
[1] This is an application for condonation for the late delivery of a review in terms
of section 145(1)(2)(a)(ii) of the Labour Relations Act1 (LRA).
[2] The Third Respondent opposed the application, and this Court is required to
determine whether the Applicants have made out a case for condonation.
Relevant background
[3] The First Applicant is empowered to conclude Collective Agreements in the
Road Freight and Logistics Industry and to enforce such agreements in terms
of section 33 of the LRA.
[4] The First Applicant’s Collective Agreements are binding on the employer and
employee parties to those agreements in terms of section 31 of the LRA.
[5] The First Applicant’s Collective Agreement which deals with the substantive
terms and conditions of employment within the Road Freight and Logistics
Industry was extended to non-parties by Ministerial Proclamation and binds the
Third Respondent.
[6] The Second and further Applicants complained to the First Applicant that they
were being paid less than the wages set out in the Collective Agreement. The
First Applicant appointed designated agents to investigate the Third
Respondent’s non-compliance with the First Applicant’s Main Collective
Agreement.
[7] On 4 November 2021 the First Applicant issued a compliance order demanding
that the Third Respondent comply with the various clauses of the Main
Collective agreement and pay the assessed amount of R136 181.11 within 14
days of the receipt of the compliance order.
1 Act 66 of 1995, as amended.
3
[8] Despite this the Third Respondent failed to comply and so the First Respondent
referred the dispute to arbitration as provided for in section 33A (4)(a) of the
LRA read with clause 5 of the First Applicants Exemptions and Dispute
Resolution Collective Agreement.
[9] The arbitration convened on 11 February 2022 under the auspices of the
Second Respondent. The First Respondent issued a ruling on 22 February
2022 where she dismissed the matter against all the Second and further
Applicants save for Messrs Phezani and Zondo who were present at the
hearing. She also postponed the matter for the First Applicant to have an
opportunity to determine how the amounts were arrived at in the compliance
order.
[10] It is this ruling that the Applicants seek to review in this Court. The Applicants
were required to apply for condonation of the late filing of the review application
because it was filed with this Court, on the Third Respondent’s version (which
must be accepted in accordance with the Plascon Evans rule
2), one year three
months and 13 days late.3
Preliminary remarks
[11] It is important for litigants to understand that when this Court is approached for
an indulgence, it is expected, at the very least, that the correct statutory
provisions are referred to and the Rules of this Court are followed as closely as
possible.
[12] Whilst it is trite that this Court is enjoined to realise the expeditious resolution
of labour disputes, this does not mean that practice and procedure should be
ignored. Ordinarily, technical points are not encouraged, and this Court is often
required to look at the substance of a matter at the expense of the form.
However, this matter is replete with errors which hardly engender the sympathy
of the Court.
2 Plascon-Evans Paints (TVL) Ltd v Van Riebeck Paints (Pty) Ltd [1984] 2 All SA 366 (A)
3 Index to Pleadings p 20 pp 43 – the Applicants allege that it was filed ‘a little over 13 months late… ’
4
[13] On a very basic level, in terms of Rule 37 (6) of the Rules Regulating the
Conduct of the Proceedings of the Labour Court4, a copy of the order or award
that an applicant seeks to review must be annexed to the affidavit. Despite
stating in the Notice of Motion and Founding Affidavit that the Ruling is annexed
to the Notice of Motion marked ‘AA’, it is not. After extensively searching the
court file the order was eventually found at p 33 in the Index to the Notices
bundle. This is contrary to the Rules of the Labour Court.
[14] Next, in pp 44.3 of the founding affidavit, the Applicants state that ‘… the ruling
which is the subject matter of this review was not a final determination of the
matter…’
[15] In that paragraph the Applicants have conceded that this review cannot be one
of an ‘Arbitration Award’ contemplated in section 145 of the LRA. This means
that the deponent to the founding affidavit has referred to the incorrect test for
review in paragraph 9 and the incorrect section of the LRA in paragraph 10
5
when she states that it is a review in terms of section 145(1) and (2)(a)(ii).
[16] This could only ever be a review in terms of section 158(1)(g) of the LRA as it
is the ‘…review of the performance or purported performance of any function
provided for in the LRA …’ The First Respondent’s Ruling falls within these
parameters. Therefore, the test set out in the locus classicus Constitutional
Court judgment Sidumo v Rustenburg Platinum Mines Ltd 6 does not have
application in this matter. This Court is not required to make a finding on
whether the ruling is one that a ‘…reasonable decisionmaker could not reach…’
[17] Given the submission by the Applicants that the ruling is not one that sets out
the final determination of the dispute, it is subject to the provisions of section
158 (1B) of the LRA which states that:
‘…the Labour Court may not review any decision or ruling made during
conciliation or arbitration proceedings conducted under the auspices of… any
conciliation or arbitration proceedings conducted under the auspices of… any
bargaining council in terms of the provisions of this Act before the issue in
4 GN 50608. Effective 17 July 2026.
5 Index to Pleadings p 9 pp 9
6 [2007] 12 BLLR 1097 (CC) at para 10.
5
dispute has been finally determined by … the bargaining council… except if the
Labour Court is of the opinion that it is just and equitable to review the decision
or ruling made before the issue in dispute has been finally determined…’
[18] The Court is mindful of the fact that the parties did not argue this issue before
it and that the issue was not raised by the Third Respondent. It is curious that
the Third Respondent did not notice any of these issues and blithely argued the
incorrect provisions without a second thought. However, the Court is bound to
determine the case that is pleaded in the papers advanced by the Applicants.
In the matter of Smuts v Adair and others,
7 the Court stated in respect of
another type of review under the LRA:
‘…… the other part[ies] to the dispute must not be placed in the position where
the application is heard and decided on grounds other than those pleaded.
They must know what case they are required to oppose...’
[19] Had the Third Respondent not opposed the matter, the Applicants would not
have been entitled to the relief sought in law by default as the matter was
referred under the wrong section.
[20] In Vanguard of Organised Labour (Voola) v Mahlangu and others,
8 Snyman AJ
stated the following:
‘…In order for the Labour Court to have jurisdiction, the issue for determination
must be specifically provided for in the LRA, … to be decided by the Labour
Court. The applicant must also indicate on what provision in any of these items
of legislation the applicant relies….’ (own emphasis)
The Condonation Application
[21] It is common cause that the application for condonation was brought over one
year after the ruling was handed down by the First Respondent.
7 [1999] 4 BLLR 392 (LC) at para 16.
8 [2025] JOL 69950 (LC) at para 20. The Court relied on the following authority set out in fn 24 thereof,
i.e. SA Medical Association Trade Union on Behalf of Rikhotso v Member of the Executive Council,
Department of Health, Limpopo Province and Others (2023) 44 ILJ 1779 (LC) at para 6, Shezi v SA
Police Service and Others (2021) 42 ILJ 184 (LC) at para 10 and Booysen v Beaufort West Municipality
and Another (2021) 42 ILJ 2415 (LC).
6
Legal Principles
[22] The recent case of Chasi v University of Johannesburg 9 outlined the
established legal principles for granting condonation citing those set out in the
case of Melane v Santam Insurance Co Ltd
10
:
'In deciding whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially upon a consideration of all
the facts, and in essence it is a matter of fairness to both sides. Among the
facts usually relevant are the degree of lateness, the explanation therefor, the
prospects of success and the importance of the case. Ordinarily these facts are
interrelated, they are not individually decisive, save of course that if there are
no prospects of success there would be no point in granting condonation.'
[23] In the Constitutional Court case of Grootboom v National Prosecuting Authority
and another11 the Court restated the principles of their previous condonation
decisions12
‘…It is now trite that condonation cannot be had for the mere asking. A party
seeking condonation must make out a case entitling it to the court’s indulgence.
It must show sufficient cause. This requires a party to give a full explanation for
the non-compliance with the rules or court’s directions. Of great significance,
the explanation must be reasonable enough to excuse the default…
[24] The Court exercises its discretion based on fairness to both parties, weighing
several interrelated factors rather than viewing them in isolation. In Academic
and Professional Staff Association v Pretorius NO and Others13 the Labour
Court, stated the approach to condonation as follows:
'The factors which the court takes into consideration in assessing whether or
not to grant condonation are: (a) the degree of lateness or non-compliance with
the prescribed time frame; (b) the explanation for the lateness or the failure to
9 (J 1747/18) [2022] ZALCJHB 341 (25 November 2022).
10 1962 (4) SA 531 (A) 532C-E.
11 [2014] 1 BLLR 1 (CC) at para 23.
10 1962 (4) SA 531 (A) 532C-E.
11 [2014] 1 BLLR 1 (CC) at para 23.
12 See: Brummer v Gorfil Brothers Investments (Pty) Ltd and others 2000 (2) SA 837 (CC) at para 3 and
eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC)
13 (2008) 29 ILJ 318 (LC) paras 17-18. See also Mndebele and Others v Xstrata SA (PTY) Ltd t/a Xstrata
Alloys (Rustenburg Plant) (2016) 37 ILJ 2610 (LAC) at para 4.
7
comply with time frame; (c) prospects of success or bona fide defence in the
main case; {d) the importance of the case; (e) the respondent's interest in the
finality of the judgment; (f) the convenience of the court; and (g) avoidance of
unnecessary delay in the administration of justice It is trite law that these factors
are not individually decisive but are interrelated and must be weighed against
each other. In weighing these factors for instance, a good explanation for the
lateness may assist the applicant in compensating for weak prospects of
success. Similarly, strong prospects of success may compensate the
inadequate explanation and long delay.'
[25] In Maphai v South African Forestry SOC Ltd and Others14 the Court stated
‘…I am of the view that the longer the delay, the worse it is for the applicant
seeking condonation … An excessive delay could in itself be seen to be fatal
to the issue of good cause. As a general benchmark, delays in excess of two
months after the expiry of the time limit … can generally be described to start
becoming excessive.
15
[26] In Seatlolo and others v Entertainment Logistics Service (a division of Gallo
Africa Ltd)16 the Court held:
'In order to exercise its discretion whether or not to grant condonation, this court must
be appraised of all the facts and circumstances relating to the delay. The applicant
for condonation must therefore provide a satisfactory explanation for each period of
delay. See NUMSA & another v Hillside Aluminium [2005] 6 BLLR 601 (LC) where
Murphy AJ held that an unsatisfactory explanation for any period of delay will normally
be fatal to an application, irrespective of the applicant's prospects of success.'
14 (JR 1021 / 19) [2022] ZALCJHB 293 (7 October 2022) at para 9.
15 Compare Plastics Convertors Association of SA and Another v Metal and Engineering Industries
Bargaining Council and Others (2017) 38 ILJ 2081 (LC) at para 15; Silplat (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 1739 (LC) at para 24; National
Education Health and Allied Workers Union and Others v Vanderbijlpark Society for the Aged (2011)
32 ILJ 1959 (LC) at para 2; Van Dyk v Autonet (A Division of Transnet Ltd) (2000) 21 ILJ 2484 (LC) at
para 12.
16 (2011) 32 ILJ 2206 (LC) at para 11.
8
[27] In the Court in Independent Municipal and Allied Trade Union on behalf of
Zungu v SA Local Government Bargaining Council and Others 17 provided the
following guidance:
'In explaining the reason for the delay it is necessary for the party seeking
condonation to fully explain the reason for the delay in order for the court to be
in a proper position to assess whether or not the explanation is a good one.
This in my view requires an explanation which covers the full length of the
delay. The mere listing of significant events which took place during the period
in question without an explanation for the time that lapsed between these
events does not place a court in a position properly to assess the explanation
for the delay. This amounts to nothing more than a recordal of the dates
relevant to the processing of a dispute or application, as the case may be.'
[28] When the Court is looking at an Applicant’s prospects of success as required
in a condonation application, it is required to consider whether, if the claim as
advanced in the statement of claim of the applicant is true, the applicant would
succeed.
18
However, where an applicant fails to provide an explanation for the
delay or material parts of the delay, the issue of prospects of success in fact
becomes an irrelevant consideration. 19 In NUM v Council for Mineral
Technology20 the Court held:
'There is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay, the prospects of success
are immaterial, and without good prospects of success, no matter how good
the explanation for the delay, an application for condonation should be
refused...'
17 (2010) 31 ILJ 1413 (LC) at para 13.
18 See: Nature's Choice Products (Pty) Ltd v Food and Allied Workers Union and Others (2014) 35 ILJ
1512 (LAC) at para 21; National Union of Metalworkers of SA and Others v Crisburd (Pty) Ltd (2008)
29 ILJ 694 (LC) at para 8; Dial Tech CC v Hudson and Another (2007) 28 ILJ 1237 (LC) at para 38;
Gaoshubelwe and Others v Pie Man's Pantry (Pty) Ltd (2009) 30 ILJ 347 (LC) at para 27.
19 See: Mziya v Putco Ltd [1999] 2 BLLR 103 (LAC) at para 9; Moila v Shai NO and Others (2007) 28
ILJ 1028 (LAC) at para 34; Universal Product Network (Pty) Ltd v Mabaso and Others (2006) 27 ILJ
991 (LAC) at para 20; Colett v Commission for Conciliation, Mediation and Arbitration and Others (2014)
35 ILJ 1948 (LAC) at para 38; Mgobhozi v Naidoo NO and Others (2006) 27 ILJ 786 (LAC) at para 34.
20 [1999] 3 BLLR 209 (LAC) at para 10.
9
[29] In employment law matters in particular there is a critical component that needs
to be considered - this is the consideration of the interests of justice. 21 What
this entails is that in the particular case, there may be some very unique or
exceptional circumstance that necessitates the Court to consider the case on
the merits, because it is in the interest of justice to do so.
[30] In other words, the exercise of judicial discretion in favour of condonation
should not be done in instances where the Applicants have shown a disregard
for the statutory provisions and Rules of Court and there is no pressing and
particular issue that is worthy of the Court’s indulgence.
Analysis
[31] As mentioned before, this Court takes a rather more robust approach to the
substance of disputes rather than a laser focus on form. However, it is
appropriate for me to quote the Constitutional Court from the Grootboom v
National Prosecuting Authority judgment:22
‘I need to remind practitioners and litigants that the rules and courts’ directions
serve a necessary purpose. Their primary aim is to ensure that the business of
our courts is run effectively and efficiently. Invariably this will lead to the orderly
management of our courts’ rolls, which in turn will bring about the expeditious
disposal of cases in the most cost-effective manner. This is particularly
important given the ever -increasing costs of litigation, which if left unchecked
will make access to justice too expensive.’
[32] Unfortunately for the Applicants, there is really no explanation for the delay
except to set out the vagaries of the workload of various agents and state simply
that this matter ‘slipped through the cracks… ’ Whilst I can admire the candour
of this submission, it cannot be rewarded by this Court in these circumstances.
It would not be in the interests of justice or fairness to allow condonation for the
late filing of a review application that has no prospects of success in its current
late filing of a review application that has no prospects of success in its current
21 See: MJRM Transport Services CC v Commission for Conciliation, Mediation and Arbitration and
Others (2017) 38 ILJ 414 (LC) at para 22; Sasol lnfrachem v Sefafe and Others (2015) 36 ILJ 655 (LAC)
at para 29; Thiso and Others v Moodley NO and Others (2015) 36 ILJ 1628 (LC) at para 7; SA Post
Office Ltd v CCMA and Others (2011) 32 ILJ 2442 (LAC) at para 17.
22 Id fn 11 at para 32.
10
form. In any event, I am not convinced that the Applicants have made out a
case on the merits at all.
Costs
[33] I have a wide discretion where it comes to the issue of costs, having regard to
the provisions of section 162(1) of the LRA. In my view, it would not be
appropriate for me to depart from the norm of not awarding costs to the
successful party. This could have been an instance where I would have
awarded costs to the Third Respondent however, it did not identify the issues
with the application and have benefitted from it by being successful. The Court
is of the view that no order as to costs is appropriate and fair in this case.
[34] For all of the reasons set out above, the following order is made:
Order
1. The application for condonation is refused.
2. Therea is no order as to costs.
V. M. Oosthuizen
Acting Judge of the Labour Court of South Africa
11
Appearances:
For the Applicants: Andrew John Prior
Prior and Prior Attorneys
For the Respondent: Ms T Moodley
Norton Rose Fulbright South Africa Inc