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[2026] ZALCCT 134
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Matika v Commission for Conciliation Mediation and Arbitration and Others (C47/2022) [2026] ZALCCT 134 (12 August 2026)
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THE
LABOUR OF SOUTH AFRICA, CAPE TOWN
Case
no: C47/2022
(1)
Reportable: NO
(2)
Of interest to other Judges: Yes
12
August 2026
In
the matter between:
SIPHELO
IGOR MATIKA
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
MANTSHOPA
ESTER MAKHUBELA N.O.
Second Respondent
TATA
MOTORS
Third Respondent
Heard:
21 June 2023
Delivered:
12 August 2026
JUDGMENT
COETZEE,
AJ
Introduction
[1]
This is an application for the review of a condonation ruling (the
ruling) made by the second respondent in relation to the late
referral of the applicant’s unfair dismissal dispute. In terms
of the ruling, the second respondent refused to grant the
applicant
condonation for the late referral of his unfair dismissal claim. The
application was opposed by the third respondent.
The
relevant background facts
[2]
The
applicant was employed by the third respondent as a Diesel Mechanic.
On 2 June 2021
[1]
the applicant
was dismissed for gross insubordination and insolence.
[3]
The applicant referred an unfair dismissal claim to the first
respondent on
15 November 2021. Accordingly, the applicant’s
referral was 166 days late.
[4]
An application for the condonation for the late referral of the
applicant’s unfair dismissal dispute was made on 15 November
2021. The affidavit filed in support of the condonation application
was deposed to by Clifford Phasha (Phasha), a trade union official.
[5]
The application for condonation was unopposed before the second
respondent.
The
condonation application
[6]
In
terms of the condonation application (which was completed on a
pro
forma
application for condonation form of the Commission for Conciliation,
Mediation and Arbitration (‘
CCMA’
))
the reason for the late referral was recorded as
(i) Phasha
taking the applicant’s ‘
pro-forma
documents to my office’
.
[2]
,
(ii) Phasha, on 8 June 2021, falling ill and consulting a doctor
who booked him off work from that day until 11 June 2021, (iii)
thereafter, on 14 June 2021, Phasha being diagnosed with Covid-19,
and returning to work during August 2021, (iv) at some stage
thereafter the ‘
applicant’s
documents were misplaced’
,
(v) the fact that the applicant’s documents were ‘
misplaced’
only being discovered during November 2021, which was when the
applicant followed up on it. Therefore, the applicant’s unfair
dismissal dispute was only referred to the first respondent during
November 2021.
[7]
The information, as summarised in paragraph 9 above, is what was
proffered on behalf of the applicant as the reasons for the late
referral of his unfair dismissal dispute. What is immediately
apparent from this information is that there is no explanation for
the delay between August 2021 and November 2021. This, in the context
of this matter, is a lengthy period for which there is no
explanation. There is also no information as to the steps the
applicant took during this unexplained period to have his unfair
dismissal dispute referred to the first respondent, or to follow up
with Phasha as to the status of the referral of his unfair
dismissal
dispute.
[8]
In
relation to the issue of the prospects of success, what was stated in
the condonation application was that the applicant was
employed as a
Diesel Mechanic, and that the person who issued an instruction to him
did not have the authority to do so. This allegation
was clearly made
because the applicant was charged with gross insubordination and
gross insolence.
[3]
[9]
Furthermore, in relation to the issue of prejudice, it was recorded
in the condonation application that ‘
the applicant currently
is unemployed and tried his level best to seek employment without
success. With the COVID-19 pandemic the
employment opportunities are
scarce.’
.
[10]
Finally,
under the heading ‘
General’
in the condonation application,
it was recorded that ‘…
the
attached sick notes to proof that the union official was indeed off
sick.’
.
[4]
[11]
The information contained in the condonation application, as
summarised in paragraphs 9 to 13 above, together with the applicant’s
dismissal dispute referral form, what that served before the second
respondent when she adjudicated the condonation application.
The
test for the review of a ruling relating to the condonation of a
unfair dismissal claim that is referred out of time
[12]
What is the test applicable to applications for the review of a
decision by a commissioner, acting under the auspices of the first
respondent,
who refuses to grant condonation for the late filing
of an unfair dismissal dispute?
[13]
In
order to answer this question, it is necessary to understand the
nature of the power of a commissioner in exercising such a function.
In the matter of
Nature's
Choice v Food and Allied Workers Union and others
[5]
the Labour Appeal Court stated the following:
‘
[11]
The consideration of a request for condonation involves the exercise
of a judicial discretion which has been described as a ‘wide
discretion’, or a discretion ‘loosely so called’.
In Motloi v SA Local Government Association, McCall AJA summarized
the position on appeal as follows:
‘
In
my judgment the discretion conferred on the court of first instance
in deciding whether or not to grant condonation for the late
referral
of a dispute is a wide discretion or a discretion “loosely so
called”. The court of first instance is required
to arrive at a
decision “in the light of all relevant considerations”
such as the length of the delay, the prospects
of success in the main
application, the possible prejudice to the parties and the blame
attaching to the parties (cf the Knox D'Arcy
Ltd case at 362B-C). The
court on appeal is in as good a position as the court a quo to decide
whether or not good cause has been
shown for granting condonation,
and, that being so,
it may substitute its decision for that of
the court a quo if “it considers its conclusion more
appropriate” (see the
Bookworks (Pty) Ltd case at 805A-D).’
[12]
It is thus established in the Motloi case that on appeal, this court
may substitute its decision for that of the court a quo if
it
considers its conclusion to be more appropriate.’
[14]
In
Mabaso
v Law Society of the Northern Provinces and Another
[6]
the
Constitutional Court stated the following:
‘…
It
is trite law that a court considering whether or not to grant
condonation exercises a discretion. The discretion must, of
course, be exercised judicially on a consideration of all the facts
and “in essence it is a matter of fairness to both sides.” It
is clear that the SCA may decide an application for condonation
without considering the merits of the case, though it does so only
where there is a gross and flagrant failure to comply with its
rules. Ordinarily, the approach of an appellate court to the
exercise of such a discretion is that it will not set aside the
decision of the lower court
“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.”’
[15]
In
Colett
v Commission for Conciliation, Mediation and Arbitration and
others
[7]
the Labour Appeal Court applied the test adopted in
Mabaso
supra.
The Court stated that:
‘
[29]
A court of appeal will not lightly interfere with the exercise of a
judicial discretion by a lower court. An appellant who
challenges the
exercise of a judicial discretion will have to show that such
discretion was not exercised judicially. More specifically
the
appellant will have to show that the court a quo either -
29.1
failed to bring an unbiased judgment to bear on the matter;
29.2
did not act for substantial reasons;
29.3
exercised its discretion capriciously or arbitrarily;
29.4
exercised its discretion upon wrong principle;
29.5
committed a misdirection of such a serious nature and degree as to
justify a conclusion that
it acted improperly or unreasonably.’
[16]
In
Bosch
v Seynhaeve NO
[8]
the Labour Court, with due regard to the requirements for a challenge
to the exercise of a discretion as listed in
Mabaso
and
Colett
supra
stated as follows:
‘
It
follows that a review of an arbitrator’s condonation ruling
must not be assessed on a less stringent standard. In reviewing
the
ruling of an arbitrator exercising a flexible discretion in the
application of the multi-factor test applicable to condonation
rulings, a court needs to be mindful that the review is confined to
the ambit of the abovementioned grounds for interfering with
the
exercise of a wide discretion.’
[17]
To
summarize the applicable test, a Court adjudicating an application to
review the decision of a commissioner who refused to grant
condonation must determine whether the commissioner was correct in
his decision
[9]
. The Court must
determine
whether
or not good cause has been shown for granting condonation.
The
principles applicable to a condonation application
[18]
In the
well-known case of
Melane
v Santam Insurance Co Ltd
[10]
it was held that:
‘
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, for that would be a piecemeal approach
incompatible with a true discretion, save of course that if there are
no prospects of success there would be no point in granting
condonation… What is needed is an objective conspectus of all
the facts.’
[19]
The
approach that, in the absence of a satisfactory explanation for a
delay,
an applicant’s prospects of success are ordinarily
irrelevant, has been conventionally applied.
[11]
[20]
In
Steenkamp
and Others v Edcon Limited
[12]
the Constitutional Court summarised the principles applicable to
application for condonation as follows:
‘
[36]
Granting condonation must be in the interests of justice. This Court
in Grootboom set out the factors that must be considered in
determining whether or not it is in the interests of justice to grant
condonation:
“
[22]
[T]he standard for considering an application for condonation is the
interests of justice. However, the concept ‘interests
of
justice’ is so elastic that it is not capable of precise
definition. As the two cases demonstrate, it 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. It is crucial to reiterate that both Brummer and Van Wyk
emphasise that the ultimate determination of what is in the
interests
of justice must reflect due regard to all the relevant factors but it
is not necessarily limited to those mentioned above.
The particular
circumstances of each case will determine which of these factors are
relevant.
[23]
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.
[51]
The interests of justice must be determined with reference to all
relevant factors. However, some of the factors may
justifiably be
left out of consideration in certain circumstances. For
example, where the delay is unacceptably excessive
and there is no
explanation for the delay, there may be no need to consider the
prospects of success. If the period of delay is
short and there is an
unsatisfactory explanation but there are reasonable prospects of
success, condonation should be granted.
However, despite the presence
of reasonable prospects of success, condonation may be refused where
the delay is excessive, the
explanation is non-existent and granting
condonation would prejudice the other party. As a general proposition
the various factors
are not individually decisive but should all be
taken into account to arrive at a conclusion as to what is in the
interests of
justice.”
[37]
All factors should therefore be taken into account when assessing
whether it is in the interests of justice to grant
or refuse
condonation.’
[21]
It is against the backdrop of the review test and principles
applicable to condonation applications that the ruling
in casu
will be assessed.
The
application of the review test and principles applicable to
condonation applications to the ruling
in casu
[22]
The review application is focused on the applicant attributing blame
to Phasha, the union official, for the late filing
of his unfair
dismissal claim.
This is understandable, because the applicant, a
layman, drafted his own papers and appeared for himself in the review
application.
That notwithstanding, I have embarked on an analysis
of the ruling in order to see whether or not it is correct.
[23]
The ruling demonstrates that the second respondent understood the
test applicable to applications for condonation. This
is particularly
demonstrated in her exposition, at paragraph 12 of the ruling, of the
factors applicable to applications for condonation.
[24]
The second respondent’s reasons for refusing condonation are
sound.
Her finding that the delay in the filing of the
applicant’s unfair dismissal dispute was excessive cannot be
faulted.
[25]
The
applicant states in his founding affidavit
[13]
,
in the review application,
that ‘
The
reason that applicant referred the matter late is because the matter
was taken by myself Siphelo Igor Matika to labour offices
to Mr
Clifford Phasha his number 083 297 9029 in Wander Park Pretoria
Labour Department offices the first day I was dismissed
hoping
they will rush it to the CCMA
.’
[26]
It follows that the applicant was aware that there was a need to
refer his unfair dismissal dispute timeously or, at
the very least,
without delay. The second respondent’s finding that the
applicant delayed his own case and that he has no
one else to blame
but himself is perhaps not entirely accurate, as Phasha, the union
official should also shoulder some of the
blame. However, that does
not detract from the second respondent’s finding that ‘…
the
union official who had the Applicant’s document is not the only
employee of the union he should have ask his colleagues
to assist as
he was aware that the matter should be referred to the CCMA within 30
days…’
. This finding is justified in light of the
applicant’s own concession on his founding affidavit.
[27]
The second respondent’s finding that the applicant should have
also made an effort to check the status of his unfair
dismissal claim
with the CCMA can also not be faulted. This is so especially in light
of the delay that ensued after the applicant
took his matter to
Phasha, the union official on 18 May 2021.
[28]
In the premise the following order is made:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
Coetzee
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant:
In person
For
the Third Respondent:
Snyman Attorneys
[1]
The
date of dismissal is also recorded in the condonation application as
18 May 2021. Nothing turns on this discrepancy.
[2]
The ‘
pro-forma
documents’
is a reference to the applicant’s unfair dismissal referral
form.
See:
paragraph 7 of the ruling.
[3]
The
charge sheet which contained the charges the applicant faced a
disciplinary hearing was attached to the applicant’s
heads of
argument. In terms of the charge sheet the applicant faced the
following charges:
‘
ALLEGED
MISCONDUCT /CHARGES:
CHARGE
1: GROSS MISCONDUCT: GROSS INSUBORDINATION
Gross
insubordination as per clause 4.8 Para 20 of the TMSA Standing
Orders in that on the 5
th
of May 2021 you failed or
refused to follow a lawful and reasonable instruction issued by Mr
Malepe, to return to your workstation
CHARGE
2: GROSS INSOLENCE
Gross
Insolence as per clause 4.9 Para 20 of the TMSA Standing Orders in
that on 5 May 2021 you displayed a rude and disrespectful
attitude
towards Mr Pitswane when he confronted you regarding your absence
from the workstation and above refusal to return to
work. You
furthermore told Mr Malepe that he is not your boss and that he is a
small boy.
’
[4]
See:
paragraph 6 of the ruling.
[5]
(JA12/12)
[2014] ZALAC 118
(5 February 2014) at paras 11 and 12.
[6]
[2004] ZACC 8
;
2005 (2) SA 117
(CC) at para 20.
[7]
(2014)
35 ILJ 1948 (LAC) (13 February 2014) at para 30.
[8]
(159/2023)
[2024] ZALCCT 25 (27 June 2024) at para 20.
[9]
See:
SARPA
and Others v SA Rugby (Pty) Ltd and others
(2008) 29 ILJ 2218 (LAC). See also:
SACOSWU
obo Kasper v Minister of Justice and Correctional Services and
others
(2025) 46 ILJ 954 (LAC) where the court held at para 13 ‘
thus
the test is whether the arbitrator was right or wrong in his
conclusion that the (bc) did not have jurisdiction…’
[10]
1962
(4) SA 531
(A) at 532C-F.
[11]
See:
NUM
v Council for Mineral Technology
[1999]
3 BLLR 209
(LAC). See also:
National
Education Health and Allied Workers Union on behalf of Mofokeng and
others v Charlotte
Theron
Children’s Home
(2004)
25 ILJ 2195 (LAC) at para 23.
[12]
(2019) 40 ILJ 1731 (CC) at paras 36 and 37.
[13]
See:
paragraph 6 of the founding affidavit .