THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 853/20 &
JS100/22
In the matter between:
RONALD ALLEN ERENS Applicant
and
CITY OF MATLOSANA MUNICIPALITY First Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING COUNCIL Second Respondent
COMMISSIONER MOTHUS MAJE N.O. Third Respondent
Heard: 29 MAY 2025
Date Delivered: 24 APRIL 2026
Summary: Condonation Application for the late filing of the review application
– the period of delay is excessive, and t he explanation proffered by the
Applicant amounts to no explanation at all. Accordingly, condonation ought to
be dismissed on this basis alone. T he Applicant’s prospects of success are
equally unpersuasive. Condonation Application refused.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
CITHI, AJ
Introduction
[1] There were originally three di stinct applications set down for argument: first,
an application by the Applicant for condonation of the late filing of his review
application in terms of section 145 of the Labour Relations Act 1 (LRA);
second, an application to reinstate the review application, which is currently
deemed withdrawn; and third, an application by the First Respondent
(Municipality) in terms of Rule 11 of the Rules Regulating the Conduct of
Proceedings of the Labour Court
2 to dismiss the Applicant’s review application
by virtue of his delay in prosecuting it.
[2] In Chambers, Adv Segage, appearing on behalf of the Munic ipality, indicated
that the Rule 11 application is no longer being pu rsued. Consequently, only
the applications for condonation and reinstatement remain for determination.
[3] The granting of condonation for the late filling of the review application is a
jurisdictional prerequisite for this court to entertain any subsequent application
for reinstatement. In the absence of an order condoning the non -compliance
with the six weeks period to file a review application, the review application is
not properly before the Court and remains a legal nullity. Consequently, if the
condonation application is refused, this Court would lack the requisite
jurisdiction to consider the merits of the reinstatement application.
Accordingly, I will first recite the facts pertaining to the condonation
application.
[4] The Municipality opposes the Applicant’s condonation application.
1 Act 66 of 1995, as amended
2 Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the Labour
Court. Published 3 May 2024 (GN 50608). Effective 17 July 2024.
3
Background
[5] I will only detail the background insofar as it is relevant to the Applicant ’s
condonation application. Prior to his dismissal on 9 April 2019, the Applicant
was employed by the Municipality as a Management Representative in the
Stilfontein Traffic Department effectively from 1 Ja nuary 2008 earning
R25 006.00 per month. The Applicant reported to the Assistant Director
responsible for Licensing in the City of Matlosana, Mr Shaya Muntu (Muntu).
The Applicant’s responsibilities included inter alia ensuring the overall smooth
running of the testing station, assigning to the examiners on duty tasks
regarding the conduct of driving tests , monitoring and checking daily work
done by the examiners relating to the testing and attending to complaints
arising therefrom.
[6] The Traffic Department falls under the responsibility of the Northwest
Provincial Government. The M ember of the Executive Council (“MEC”)
appointed by the Premier of the Northwest Province is responsible for grading
the testing stations in each municipality. The Northwest Provincial
Government and Municipality concluded a S ervice Level Agreement (“SLA”)
wherein the M unicipality is designated as an agent of the province to run the
Department.
[7] In terms of the SLA, the Management Representative is prohibited from
conducting driving tests while scheduled examiners are on duty at Stilfontein
traffic department. However, in the event that examiners are absent from duty
for whatever reason, the Assistant Director (Muntu), is required to write a
letter to the Directorate requesting permission authorising the Management
Representative to conduct the driving test.
[8] The National Traffic Management C ooperation received an anonymous
hotline call wherein the caller alleged that the Applicant tested and
fraudulently issued three drivers licenses in November 2016. The caller
further alleged that the Applicant accepted a bribe to issue the drivers
further alleged that the Applicant accepted a bribe to issue the drivers
licenses. Mr Nyembe, a Detective in the South African Police Services
(“SAPS”) was appointed to investigate the allegations. Mr Nyembe requested
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copies of the completed DL1 form (application for driving licence), test sheets,
IDs and eye test reports as part of his investigation. Mr Nyembe further
conducted interviews with the implicated individuals and requested written
statements from relevant witnesses as part of the investigation.
[9] The investigation revealed that on 16 November 2016, the Applicant prepared
a schedule for the e xaminers conducting driving tests on 18 November 2016.
In that schedule, the Applicant allocated work to the two examiners on duty at
the Stilfontein Licensing Department , namely Mr Morero and Jeminah
Lekitlane (“Lekitlane”). The Applicant inexplicably re-allocated the two driving
tests to himself. The investigation further revealed that the Applicant directed
a letter to the Directorate requesting that the province grant him access to and
open transaction 718 in order to conduct the driving tests on 18 November
2016 at Stilfontein between 10h00 and 12h00.
[10] This request was made without the knowledge and/or permission of Muntu,
who was empowered to make such a request in terms of the SLA. On 18
November 2016, the Applicant conducted driving tests for Mrs Nombulelo
Elsie Mokoena (“Mokoena”) between 10h00 and 11h00, and for A Tsotetsi
between 11h00 and 12h00, at Stilfontein. The circumstances surrounding the
issuance of a driving licence to Mokoena underpin the factual allegations
against the Applicant, which ultimately led to his dismissal on 9 April 2019.
[11] The investigation further revealed that the Applicant did not allocate the R718
files to either Mr Morero or Jeminah Lekitlane to conduct the driving tests on
18 November 2016, despite them being the examiners on duty on that day.
The record obtained indicates that Mokoena was issued with a driving licence
on 18 November 2016 by the Applicant. The investigation could not find any
evidence of a driving licence being issued to A Tsotetsi on the same day. As
part of the investigation, Mokoena deposed to a stat ement in which she
part of the investigation, Mokoena deposed to a stat ement in which she
detailed the circumstances surrounding the issuance of her driving licence,
including paying a R5 000 bribe to the Applicant.
[12] In her evidence during the arbitration proceedings, Mokoena stated that she
attended driving lessons at AA Driving School around November 2016.
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However, she was advised not to book a test due to her advanced pregnancy
at the time. Mokoena thereafter went to another driving school, known as He
& She, based in Stilfontein and where she met Shadrack, an instructor at the
school. On 16 November 2016, Mokoena went to the Stilfontein testing station
to book an appointment for a driving test.
[13] On 17 November 2016, Mokoena met Shadrack at the Stilfontein testing
station. Shadrack enquired from her whether the “cold drink money” was
available. At some stage, Shadrack went inside the offices of the traffic
department and returned with a gentleman who was later identified as the
Applicant. The Applicant and Shadrack had a separate discussion away from
Mokoena. Mokoena testified that she was later requested to join the
discussion. At that stage, Shadrack, in the presence of the Applicant, asked
Mokoena whether the “cold drink money” for obtaining the driving licence was
available. The required “cold drink money” amounted to R5 000. Mokoena
stated that the date of 18 November 2016 was allocated to her after she
expressed her willingness to pay the required amount. On 18 November
2016, Mokoena arrived at the Stilfontein traffic department as per her
appointment, with the required “cold drink money” , which she handed to
Shadrack.
[14] Mokoena stated that Shadrack placed the money inside a bag and went into
the Stilfontein testing station, presumably to meet the Applicant. After a while,
Shadrack returned and advised Mokoena to sit in the truck, stating that
everything would be sorted. Mokoena later went inside and met the Applicant,
who gave her documents to sign, and her photographs were taken. Mokoena
was issued with a temporary licence without undergoing the actual testing. On
the testing sheet, it is reflected that the testing vehicl e used to test Mokoena
was a white Nissan Cabstar truck with registration number HLJ 769 NW.
[15] This vehicle was later identified as belonging to Mrs Ntaoleng Joyce Kameta
[15] This vehicle was later identified as belonging to Mrs Ntaoleng Joyce Kameta
(“Kameta”), the owner of Orkney Driving School. Kameta deposed to a
statement as part of the investigation. In her statement, Kameta indicated that
she was not aware that her truck had been used for testing purposes on 18
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November 2016. Kameta further stated that the truck was on her premises on
that day and was being used for driving lessons by her clients.
[16] Arising out of the above, on 9 August 2017, the Applicant was arrested by the
SAPS. On 9 January 2018, the Applicant was issued with a notification to
attend a disciplinary hearing scheduled on 17 January 2028 to answer to the
following allegations:
“CHARGE 1: GROSS DISHONESTY
That on the 18th November 2016, you solicited a reward, gift or favour in the
amount of R5000 00 from Nombulelo Elsie Mokoena, an applicant for a
drivers licence in exchange of issuing her with a code C1 drivers licence.
CHARGE 2: DISHONESTY
Count 1
That on the 18th November 2016, you misrepresented to the Municipality on a
test sheet report that you tested Mrs. N. Mokoena for drivers licence while
she was driving a Nissan truck with registration HLJ 796 NW knowingly that
you at no stage tested her for a drivers licence.
Count 2
That on the 18 th November 2016, you allocated R701 file of Ms N. Mokoena,
an applicant for a drivers licence to yourself and tested her for a driver ’s
licence well knowing that you had no authority to do so”.
[17] The Applicant was found guilty and dismissed on 9 April 2019. Dissatisfied
with the outcome, the Applicant , assisted by his trade union IMATU, referred
an alleged unfair dismissal dispute to the Bargaining Council. The arbitration
proceedings were held on 21 July, 12 August, 13 August and 14 August 2019.
On 27 August 2019, the Commissioner delivered his arbitration award. In
terms of the arbitration award, the Commissioner found that the Applicant was
guilty of the allegations of dishonesty and gross dishonesty and that dismi ssal
was warranted in the circumstances of this case.
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[18] The Applicant instituted review proceedings on 20 August 2020 to challenge
the arbitration award issued by the Third Respondent (“Commissioner”) on 27
August 2019 under case number NWD041907 acting under the auspices of
the Second Respondent (“Bargaining Council”). In terms of the award, the
Commissioner found that the Applicant’s dismissal was substantively fair.
[19] The Applicant’s review application was filed outside the six weeks period
prescribed in the LRA. That being the case, the Applicant’s review application
was accompanied by a condonation application. I am required to determine
whether the Applicant has made out a case for condonation for his late filing
of his review application.
The Applicant’s condonation application
[20] In his founding affidavit, the Applicant provided the following explanation for
the delay:
20.1 the award that is the subject of the review proceedings was made by
the Bargaining Council on 27 August 2019;
20.2 the Union (IMATU) was unable to assist him further after the Award
was delivered. He was advised to seek legal representation;
20.3 He contacted Mr van Aswegen of Theron Jordaan & Smit Incorporated
who was assisting him in his criminal case. He managed to secure an
appointment for 22 October 2019.
20.4 In that meeting, he was advised that Mr van As wegen cannot assist
him due to his involvement in the criminal case. He was referred to
Pieter Strydom Attorneys who specialises in labour matters on 30
October 2019 after a brief was prepared by Mr van Aswegen;
20.5 On 13 November 2019, Mr Pieter Strydom of Pieter Strydom attorneys
advised him that he would not be able to assist him because of his
involvement with the Afrikaanse Handelsinstituut
Werkgewersorganisasie and cannot act on behalf of an employee;
8
20.6 He was then referred to Mr Willie Bosch of Willie Bosch Attorneys . Mr
Bosch’s next available date was on 27 November 2019 due to his busy
schedule. In the meeting of 27 November, Mr Bosch requested a
deposit of R100 000.00 before he can attend to drafting the review
papers;
20.7 On 5 December 2019, he instructed Mr Bosch to return the file to Mr
Aswegen in order to seek alternative representation as he was unable
to raise the required funds;
20.8 He neglected to inform Mr van Aswegen about his instruction to Mr
Bosch due to the criminal matter dominating the circumstance at the
time. He did not contact Mr Bosch during this period. However, he was
under the impression that the file was returned to Mr Aswegen and that
he was attending to the matter;
20.9 On 20 February 2020, he had a meeting with Mr Aswegen to prepare
for the criminal trial. During the meeting, he enquired about the
progress in the arbitration and review matter;
20.10 Mr Aswegen informed him that he had not received the file from Mr
Bosch and was not aware of the arrangement to return the file to him.
Thereafter, he contacted Mr Bosch telephonically and an arrangement
was made that Mr Bosch will return the file as soon as possible.
20.11 Mr van Aswegen received the file at the end of February 2020. During
this period, Mr Aswegen was also attending to the Applicant’s criminal
case;
20.12 His criminal case was enrolled for trial in the Regional Court for the
regional division of North West under case number CAS number
88/08/2017 on 17 and 25 March 2020;
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20.13 At the conclusion of the state’s case, the Applicant applied for
discharged in terms of section 174 of the Criminal Procedure Act 3
which was granted;
20.14 He was advised that the criminal matter and outcome thereof was
important to the merits of his review application;
20.15 He was further advised that hi s case was only ready for review now as
the criminal case was concluded and the outcome made available.
Furthermore, the Applicant states that he was advised that in the
absence of the criminal outcome, his review application would not be
ready for hearing ‘as the criminal matter would have substantially
impacted this application’.
20.16 Under the heading ‘REASONS FOR BRINGING THIS APPLICATION’,
the Applicant states that:
‘6.2 As the evidence upon which the criminal charges were instigated, was
essentially the same evidence upon which the disciplinary hearing
was based and the subsequent arbitration held, it is submitted that the
commissioner of the second respondent erred in finding that my
dismissal with the First Respondent.
6.3 I am advised that a court of law, such as in which the criminal matter
was instituted, is in a much better position to determine the quality of
evidence and witnesses, than a bargaining council. The presiding
officer in the Regional Court was indeed correct in her finding.
6.4 In the event that I was indeed guilty of the reasons for my dismissal,
same would have been evident in the criminal trial, as by the time that
trial proceeded, it would have been the witness’ third time in which
they convey the exact same incidents. Their evidence, if truthful,
would not have been of such poor quality, on the third occasion, in the
criminal court.
6.5 On the First Respondent’s own version, was the disciplinary hearing
based upon the contents of the docket opened under CAS number
3 Act 51 of 1977
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88/08/2017. I cannot understand how a commissioner in a bargaining
council can come to a different conclusion than a Regional Court
Magistrate.
6.6 I still insist that I am not guilty of the charges levelled against me, and
that the outcome of the disciplinary hearing as well as the arbitration is
wrong”.
[21] Based on the above, the Applicant contends that condonation for the late filing
of his review application ought to be granted.
The Law
[22] While the law and applicable principles around condonation are trite,
considering the facts of this matter, and the submissions made by the parties,
it is worthwhile to briefly outline them. In terms of section 145 (1) of the LRA,
an aggrieved party alleging a defect in arbitration proceedings conducted
under the auspices of the CCMA must institute review proceedings within six
weeks of the date the award was served.
[23] In the oft-cited case of Melane v Santam Insurance Co Ltd
4 it was held that:
“…the basic principle is that the court has a discretion, to be exercised
judicially upon a consideration of all the facts, in essence, it is a matter of
fairness to both sides. Among the facts usually relevant are the degree of
lateness, the explanation thereof, the prospects of success and the
importance of the case. Ordinarily these facts are interrelated: they are not
individually decisive, for that would be a piecemeal approach incompatible
with a true discretion, save of course that if there are no prospects of success
there will be no point in granting condonation. What is needed is an objective
conspectus of all the facts. Thus, a slight delay and a good explanation may
help to compensate for the prospects of success which are not strong. The
importance of the issue and strong prospects of success may tend to
compensate for a long delay. The respondent’s interest in finality must not be
overlooked.”
4 1962 (4) SA 531 (A) at 532C-E.
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[24] Rule 42 (1) of the Rules Regulating the Conduct of the Proceedings of the
Labour Court states that this Court may extend or abridge any period
prescribed by these rules on application, and on good cause shown, unless
the court is precluded from doing so by an Act. Rule 42 (3) states that the
Court may, on good cause shown, condone non- compliance with any period
prescribed by these rules. In relation to Rule 12(1) of the amended rules
which mirrored Rule 42 of the current Rules, the Labour Appeal Court (“LAC”)
in Nature's Choice Products (Pty) Ltd v Food and Allied Workers Union and
Others
5 had stated:
“Rule 12(1) of the Labour Court Rules provides that a court may extend or
breach any period prescribed by the Rules on application “on good cause
shown”, unless the court is precluded from doing so by the Act. Rule 12(3)
provides that the Labour Court may, on “good cause shown”, condone non-
compliance with any period prescribed by the Rules. I have already referred
to the cases of Motloi and Melane where the term “good cause” was given a
practical meaning and in which the two main requirements that have
crystallised, namely the explanation for the delay and prospects of success,
are discussed. What is relevant at this juncture, however, is the issue of onus.
It is for the applicant who seeks condonation to “show” good cause.”
[25] The LAC in South African Police Service v Magwaxaza and Others 6 has held
the following in relation to condonation applications:
“It is trite that condonation is not for the taking and that the applicant for such
relief has to make out a proper case for it to be granted. Good, or sufficient,
cause must be shown. This not only involves giving a full explanation for the
delay, but also showing that the main process (in this instance the appeal)
has reasonable prospects of success. Generally, a slight delay and a good
explanation for the delay could compensate for weak prospects of success,
explanation for the delay could compensate for weak prospects of success,
and good prospects could make up for a long delay. But the interests of
justice are paramount.”
[26] In Van Wyk v Unitas Hospital and others7, the Constitutional Court held that:
5 (2014) 35 ILJ 1512 (LAC) at para 19.
6 (2020) 41 ILJ 408 (LAC) at para 8.
7 2008 (4) BCLR 442 (CC) at paras 20 to 22.
12
“the standard for considering an application for condonation is in the interest
of justice. Whether it is in the interests of justice to grant condonation
depends on the facts and circumstances of each case. Factors that are
relevant to this enquiry but are not limited to the nature of the relief sought,
the extent and the cause of the delay , the effect of the delay on the
administration of justice and other litigants, the reasonableness of the
explanation of the delay the importance of the issue to be raised in the
intended appeal and the prospects of success…An applicant for condonation
must give a full explanation for the delay. In addition, the explanation must
cover the entire period of the delay. And what is more the explanation must
be reasonable.”
[27] In National Union of Mineworkers v Council for Mineral Technology 8, the LAC
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 prospects of success, no matter how
good the explanation for the delay, an application for condonation should be
refused …’
[28] In SACCAWU obo Letsoalo and Another v Commission for Conciliation,
Mediation and Arbitration and Others9, the LAC held:
‘[19] Added to the general principles , in Steenkamp and Others v Edcon
Ltd, the Constitution Court endorsed the Labour Law – specific factors
and considerations which are premised on one of the primary object s
of the LRA to have labour disputes resolved expeditiously. Since
labour disputes are inherently urgent, the LRA imposes strict time
limits within which various applications and referrals must be launched
to give effect to the primary object of the LRA. As a result, and
pertinent to the case at hand, condonation in a case of disputes over
individual dismissals will not readily be granted unless, inter alia, the
explanation for non-compliance is compelling. What is more, a higher
explanation for non-compliance is compelling. What is more, a higher
threshold has been set where the delay is attributed to the internal
processes and procedures of trade unions’ (footnotes omitted)
8 [1999] 3 BLLR 209 (LAC) at para 10
9 (JA 155/23) [2025] ZALAC 12 (30 January 2025) at para 19.
13
[29] From these ex cerpts, the following general principles, which will guide the
remainder of this judgment, emerge:
29.1 this Court has a discretion to grant condonation, which discretion must
be exercised judicially, on consideration of all the facts. The way the
Court exercises its discretion must be fair to both sides;
29.2 in exercising this discretion, this Court will have consideration to the
degree of lateness, the explanation thereof, the prospects of success
and the importance of the case. All these facts are ordinarily
interrelated, and an objective conspectus of all the facts is needed;
29.3 without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial;
29.4 if there are no prospects of success, there will be little point in granting
condonation;
29.5 the main requirements for a party seeking condonation in terms of Rule
42 of the Rules to deal with are the explanation for the delay and the
prospects of success. In terms of Rule 42, the onus is on the party
seeking condonation to show good cause why condonation should be
granted; and
29.6 the interests of justice are paramount.
Analysis
[30] The impugned arbitration award was served on 27 August 2019. That being
the case, the Applicant’s review application was due on or before 8 October
2019. It is common cause however that the Applicant’s review application was
delivered on 20 August 2020. The Applicant’s review applica tion was
accordingly delivered more than 10 months outside of the six weeks period
prescribed in section 145 (1) of the LRA.
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[31] The 10 months delay in filing the review application is inordinate and the
Applicant is required to provide an explanation that is reasonable and
acceptable covering the entire period of the delay.
[32] The Applicant’s explanation for the delay is principally premised on the advice
that the outcome of his criminal proceedings bore a direct and material
relevance to the contemplated review application - in that both matters were
founded upon the same underlying facts. On this basis, the Applicant
contended that his review application was only ready to be launched upon the
finalisation of the criminal proceedings. In the absence of such finalisation, the
review application would not have been ready for hearing.
[33] The explanation proffered by the Applicant, that he had to await the outcome
of his criminal case before instituting review proceedings is flawed and, does
not constitute a reasonable explanation for the excessive delay. The approach
adopted is manifestly erroneous and fails to satisfy the requirement for a bona
fide explanation, particularly as the outcome of the criminal matter is
immaterial to the reasonableness of the Commissioner’s Award.
[34] The strategy adopted appears to be the result of a deliberate tact ical decision
by the Applicant (on the advice of his attorneys) to prio ritise the criminal
proceedings, only intending to pursue the review application should those
proceedings yield a favourable outcome. In my view, such a calculated
election is inconsistent with the requirement for a bona fide explanation for the
delay and does not constitute a valid explanation for a delay in instituting his
review application timeously.
[35] Furthermore, this tactical legal manoeuvring undermines one of the primary
objects of the LRA, which is to have labour disputes resolved expeditiously . It
is my considered view that the approach adopted by the Applicant which
resulted in the inordinate delay has the potential of damaging the interests of
resulted in the inordinate delay has the potential of damaging the interests of
the administration of justice. The Applicant’s chosen course of action has
occasioned a degree of uncertainty which is manifestly prejudicial to the
Municipality. To the extent that the Applicant may suffer prejudice should
condonation be refused, such prejudice is attributable to his elective legal
15
strategy to defer the institution of these review proceedings pending the
finalisation of his criminal matter.
[36] It is noteworthy that, notwithstanding the conclusion of the Applicant’s criminal
proceedings on 25 March 2020, the review application was only instituted on
20 August 2020. The Applicant has failed to furnish any satisfactory or
reasonable explanation for the delay during the intervening period. In the
absence of such explanation, the delay is both unreasonable and remains
unaccounted for.
[37] In the circumstances, I am of the view that the explanation proffered by the
Applicant amounts to no explanation at all. Thus, given the absence of a
reasonable and bona fide justification for the inordinate delay, the Applicant’s
prospects of success become immaterial, and the application for condonation
for the late filing of the review application ought to be dismissed on this basis
alone.
[38] In any event, I am of the view that even if a favourable view is taken of the
Applicant’s explanation, a reading of the record and assessment of his
prospects of success demonstrates that the Commissioner’s ultimate finding -
that the Applicant was guilty of misconduct and that the dismissal was
substantively fair - is objectively justifiable on the evidence that was adduced
during the arbitration proceedings, for the reasons set out below.
38.1 Management Representatives are not permitted to conduct driving
tests when Examiners are on duty;
38.2 On 16 November 2016, the Applicant scheduled Lekitlane and Morero
to conduct testing on 18 November 2016 at the Stillfontein Licence
Department;
38.3 On 18 November 2016, the Applicant inexplicably allocated an R701
form to himself to conduct a driving test for Mokoena between 10h00
and 11h00;
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38.4 In terms of the SLA between the Municipality and the Provincial
Government, Management Representatives must first obtain
permission from the Directorate before conducting driving tests . Such
request can only be made in situations of emergency;
38.5 The SLA further provides that the Assistant Director (Muntu) was the
only person authorised to write a letter requesting permission for
Management Representatives to conduct driving tests. It is common
cause, however, that the Applicant wrote the letter himself on 18
November 2016 requesting permission to operate on transaction 718,
without Muntu’s knowledge or consent;
38.6 Mokoena’s driving test was scheduled within two days of her
discussion with Shadrack and the Applicant;
38.7 The truck allegedly used during Mokoena’s test was not booked for
testing at the Stillfontein Licence Department on that day. The owner of
the truck, Kameta, stated in her statement that she is based in Orkney
and that the truck in question was used to provide lessons at her
private testing grounds on 18 November 2016;
38.9 Mokoena and Kamet a are not acquainted. Consequently, Mokoena
could not have borrowed or hired the truck from Kamet a on 18
November 2016. On the other hand, The Applicant and Kameta have
known one another for over two decades and are members of the
same religious congregation. Accordingly, the Applicant’s inclusion of
Kameta’s vehicle details on the testing sheet on 18 November 2016
transcend mere coincidence; and
38.10 On the objective evidence before the Commissioner, Mokoena did not
know the Applicant prior to the incident. Consequently, she had no
apparent motive to fabricate a version against the Applicant.
Furthermore, her testimony is bolstered by the fact that it involves an
admission of her own participation in potentially criminal conduct. On
the balance of probabilities, it is highly improbable that a witness would
falsely implicate themselves in such a manner.
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[39] Based on the above chronology and evidence that was before the
Commissioner, the Commissioner’s finding, on a balance of probabilities, that
the licence issued to Mokoena on 18 November 2016 was irregularly issued is
not unreasonable or untenable 10. On the evidence before the Commissioner,
it was a reasonable and not untenable finding, on a balance of probabilities,
that a monetary payment was made in order to procure the issuance of the
licence on that date - without the requisite physical testing having been
conducted.
[40] The established facts , in my view, corroborate the Municipality’s version of
events and reveal conduct that is improper and fairly warranting of dismissal .
Such conduct, which is characterised by malfeasance, constitutes a gross
abuse of power and strikes at the heart of the trust relationship inherent in the
employment relationship.
[41] In these circumstances, the conclusion reached by the Commissioner that the
Applicant was guilty of misconduct and dismissal was an appropriate sanction
cannot be faulted. That conclusion is, in my view, eminently reasonable and
accords with the evidence presented. Thus, the Applicant’s prospects of
success in the main review application are extremely poor. I am of the view
that it is therefore not in the interests of justice to grant condonation in this
matter. The application for condonation having been refused, the door to the
merits of the reinstatement application remains closed. This Court, therefore,
lacks the jurisdiction to consider the relief sought by the Applicant in the
reinstatement application.
Costs
[42] In the exercise of my discretion under section 162 of the LRA, I have taken
into account the principles of law and fairness as articulated by the
Constitutional Court in Zungu v Premier of the Province of KwaZulu – Natal
11.
I am of the view that there is no reason to depart from the general rule in
labour matters that a losing party should not be mulcted in costs, provided the
labour matters that a losing party should not be mulcted in costs, provided the
10 Mashele v South African Reserve Bank and Others [2026] 1 BLLR 57 (LAC) and the authorities
cited therein on the threshold required for the review Court to interfere with factual findings.
11 [2018] 4 BLLR 323 (CC).
18
litigation was initiated in good faith. Consequently, I find that a costs order is
not warranted in the circumstances of this case.
[43] Accordingly, the following order is made:
Order:
1. The condonation application for the late filing of the Applicant’s Review
Application is dismissed; and
2. There is no order as to costs.
______________
D. Cithi
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Adv L Hollander
Instructed by : Theron, Jordaan & Smit
For the First Respondent : Adv T Segage
Instructed by : De Swardt Myambo Hlahla Attorneys