IN THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Case No: D258/2022
In the matter between:
CHARL SCHAANICK Applicant
and
BLUROCK QUARRIES (PTY) LTD First Respondent
SIZWE M NGUBANE
(In the capacity as a commissioner) Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
Heard: 12 November 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 14h00 on 14 May 2026.
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: No
Signature Date
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ALLEN-YAMAN J
Introduction
[1] Having initiated his review application outside of the time period allowed
therefor, the applicant applied for condonation for such delay.
[2] The first respondent delivered an answering affidavit in response to the review
application itself, but did not deliver an affidavit in opposition to the condonation
application. Mr For ster, who appeared on its behalf, argued that the
condonation application had not been served on the first respondent, and for
that reason the application should be dismissed.
[3] In the service affidavits filed in substantiation of service of both the review and
the condonation applications, the deponent thereto asserted that both
applications had been served on the first respondent on 26 October 2022 by
way of email. N either affidavit recorded that the deponent thereto had
telephoned the intended recipient thereof to confirm receipt. In addition, Mr
Forster pointed out that unlike the email annexed to the service affidavit which
evinced service on the third respondent, the email which appeared to have
been transmitted to the first respondent did not reflect that the condonation
application had been attached thereto.
[4] In its answering affidavit in the review application, the first respondent took two
preliminary points, one of which concerned the fact that the review application
had been initiated outside the time period allowed without the applicant having
applied for condonation. From this it is evident that the first respondent was
then unaware of the applicant’s condonation application. In his replying
affidavit the applicant stated that his condonation application had explained the
delay. From this exchange, it ought to have become apparent to both parties
that the applicant had , in fact, initiated a condonation application, but that the
first respondent was unaware thereof.
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[5] Be that as it may, t he only possible outcome as a result of the failure on the
part of the applicant to establish service of the condonation application would
be the striking off of the application, and not the dismissal of the application
itself. Given that an answering affidavit delivered by the first respondent would
do no more than address the issues which Mr For ster raised in argument, no
point would be served by delaying the matter any further. The issue of
condonation will accordingly be dealt with on the basis of the applicant’s papers
alone.
Background
[6] It is trite that an applicant ask ing this court to exercise its discretion in favour of
granting it the indulgence of condonation is required to address the length of
the delay, the reasons for the delay, and its prospects of success. In the final
analysis, this court must be placed in possession of sufficient facts upon which
to form the conclusion that the interests of justice are best served by the
granting of the relief sought. Not one of the issues required to be dealt with by
the applicant was addressed with sufficient particularity as to enable this court
to do so.
[7] In the main application the applicant s ought to review a ruling in terms of which
the second respondent refused to grant him condonation for the late referral of
his dispute to the third respondent. The award was dated 11 November 2021
and was signed by the second respondent approximately one month later on 9
December 2021. Despite having been required to have particularised the
length of the delay, the applicant alleged only that he received the ruling by
email ‘on or about February 2022.’ Given that th e award was transmitted to
him by email he would have been able to specify precisely when it was emailed
to him within the month of February 2022, rather than having left the issue to be
guessed at, with the entire month of February 2022 constituting the margin of
error.
guessed at, with the entire month of February 2022 constituting the margin of
error.
[8] His review application was ultimately launched on 26 October 2022. The
precise date on which he received the ruling not having been stipulated, the
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precise length of the delay was also left unspecified. On this court’s
calculations, the longest possible period of the delay was approximately six
months, with the shortest possible period being approximately five. In either
event, the period of delay was not insignificant.
[9] The applicant’s explanation for the delay was vague and lacked any
substantiation. In summary he stated:
- Having received the ruling, he was dissatisfied and approached an attorney
in Estcourt for assistance, at which time he was advised that he would need
to apply to this court to review the ruling.
- Armed with this advice, he approached ‘Europe Assist’ for assistance.
- He supplied ‘Legal Assist’ with all the relevant documents.
- On 25 April 2022 ‘Legal Assist’ advised him that an attorney in
Pietermaritzburg would assist him.
- As the firm of attorneys was some 110 km away from his place of residence,
and as he had no funds to travel there, he was then unable attend at their
offices to consult with them.
- ‘On or about late July 2022’ he managed to secure sufficient funds for the
trip to Pietermaritzburg.
- His attorneys reported to ‘ Europe Assist ’ regarding his prospects of
success.
- Europe Assist approved funding for the litigation.
- His attorneys drafted the condonation and review applications.
- ‘On or about the first week of August 2022’ he was contacted by his attorney
who requested that he attend at their offices for a second consultation.
- Lack of funds prevented him from attending at this consultation until 29
September 2022, at which time he was given draft condonation and review
applications.
- Pursuant to those draft affidavits having been amended that day , he was
unable to commission the affidavits as a result of load shedding.
- The finalised affidavits were emailed to him the following day, whereafter he
attended to the commissioning thereof.
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[10] The first difficulty with the applicant’s explanation is its almost complete lack of
particularity concerning the dates on which the activities described were
undertaken. This court is accordingly left to speculate as to: when he consulted
an attorney in Estcourt; when he approached what is presumed to be his legal
insurers (whether Europe Assist or Legal Assist) for assistance in the
prosecution of his claim; when exactly he met with his present attorneys of
record for the first time; when his attorneys r eported to his legal insurers ; when
funding for his review application was approved; or when he was requested to
return to his attorneys for a second consultation.
[11] Distinct from this, the applicant attributed the cause of a large part of the delay
to his limited financial means, which he alleged prevented him from travelling
from his home town of Estcourt to the offices of his attorneys in
Pietermaritzburg. Whilst this court is not unsympathetic to the issue of financial
constraints, in the present instance, the applicant’s financial position did not in
fact impede his ability to prosecute the review application timeously. As the
review pertains to a ruling which was dealt with on the papers, armed with the
relevant documents there was no need for the applicant to have physically
consulted with his attorneys. In as much as he provided all the relevant
documents to his legal insurers, and received the final affidavit by email, there
is no reason why, if travelling to Pietermar itzburg had proven to be an obstacle
to the timeous prosecution of his review, he could not have provided the
documents to his attorneys electronically and consulted with them
telephonically or via a virtual platform.
[12] Finally, although on his own version he received the final affidavits via email on
30 September 2022, he provided no explanation whatsoever for the further
delay until 19 October 2022 when these were eventually signed.
delay until 19 October 2022 when these were eventually signed.
[13] As regards the applicant’s prospects of success, he failed to deal with this
aspect in any meaningful manner, having alleged alternately that his prospects
of success were ‘good’ and ‘excellent’ without providing any basis for such
conclusions or even having referred this court to his own review application.
Although this court was not obliged to do so, it has taken cognisance of the
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applicant’s founding affidavit in his review application (no supplementary
affidavit having been delivered) together with the record in consideration of this
issue.
[14] The ruling in question was one in which the second respondent refused to grant
the applicant condonation for the late referral of his dispute to the third
respondent. In his affidavit in support of that application for condonation, the
applicant alleged that the referral had been made two days late. Had the
second respondent found this to have been the correct factual position, it is
doubtful that condonation would have been refused. Alive to the fact that the
applicant had asserted a two day delay, the second respondent found
otherwise,
‘8. According to the referral the dismissal was effected on the 21 st July 2021
which after riots that emerged in the province in July 2021. Both referral
forms and condonation application were signed by the Applicants on the 22 nd
July 2021 which was within the statutory timeframe as stipulated in the LRA
that is 30 days within which to refer an unfair dismissal to the CCMA or
Council.
9. If the Applicants were dismissed on the 21
st July 2021 and had signed the
form on the 22 July 2021, what necessitated a condonation application? The
records in the case file indicate that the referral form and condonation
application form were only submitted to the CCMA on the 14 th October 2021.
It is not clear or explained why the referral signed on the 22 nd July 2021 was
only submitted to the CCMA only on the 14th October 2021.’
On the basis of such findings, he concluded that the delay was both excessive
and unexplained. With this, he found that consideration of the prospects of
success were unnecessary, and declined to grant condonation.
[15] On the issue of the circumstances in which a court may interfere with the
outcome of the exercise of a discretion by a lower court, in National Coalition
outcome of the exercise of a discretion by a lower court, in National Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others
2000 (2) SA 1 (CC) the Constitutional Court held as follows,
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‘A Court of appeal is not entitled to set aside the decision of a lower court granting or
refusing a postponement in the exercise of its discretion merely because the Court of
appeal would itself, on the facts of the matter before the lower court, have come to a
different conclusion; it may interfere only when it appears that the lower court had not
exercised its discretion judicially, or that it had been influenced by wrong principles or
a misdirection on the facts, or that it had reached a decision which in the result could
not reasonably have been made by a court properly directing itself to all the relevant
facts and principles.'1
[16] In consideration of the allegations contained in the applicant’s founding affidavit
in his review application, this court is unable to conclude that the applicant
would be likely to succeed in overturning the second respondent’s ruling . The
applicant did not address the issue of the second respondent’s findings in
relation to the period of the delay and, without any challenge to such findings ,
his findings that the delay was both greater than that which had been stated by
the applicant and had been wholly unexplained, could not be interfered with on
review. In addition, the record delivered by the applicant does not evince any
fault in relation to the second respondent’s factual conclusion. From the award
itself, it is not apparent that the second respondent failed to exercise his
discretion judicially, or was influenced by any wrong principle or factual
misdirection. As n othing in the applicant’s review application evinces any
failure on the part of the second respondent to have reached a decision which
could not have been reached by another court directing itself to the issues
before him, it cannot at this stage be found that the applicant’s prospects of
success are ‘good’, let alone ‘excellent.’
[17] In the present application, the applicant did not deal with his own potential
[17] In the present application, the applicant did not deal with his own potential
prejudice at all . He asserted that the first respondent would not be prejudiced
by the granting of condonation as it was ‘well aware’ that he intended to pursue
the matter further. He did not, however, explain how such awareness was to
have been imputed to the first respondent, it not having been self -evident that
this was the case.
1 At paragraph 11
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[18] In the circumstances, the applicant failed on his own version to place any facts
before this court which could have enabled it to have concluded that the
interests of justice required it to exercise its discretion in favour of granting him
condonation for the late initiation of his review application. Condonation will
accordingly be refused.
Costs
[19] Albeit that the first respondent asked for an costs order consequent upon the
dismissal of the application in its heads of argument, Mr Forster indicated upon
the conclusion of the hearing that it did not persist with such request.
Order
1. Condonation for the late initiation of the review application is refused.
2. There is no order as to costs.
________________________
K. ALLEN-YAMAN J
Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr P Blomkamp SC, instructed by Ganie & Co
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First Respondent:
Mr J Forster, Forster Attorneys