IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 798/21
In the matter between:
ZAMOKWAKHE ENOCK KHUZWAYO Applicant
and
GENERAL PUBLIC SERVICE SECTOR
BARGAINING COUNCIL First Respondent
COMMISSIONER E MAREE Second Respondent
THE MINISTER FOR PUBLIC SERVICE
AND ADMINISTRATION Third Respondent
RHULANI MAKHUBELA Fourth Respondent
Heard: 11 June 2026
Delivered: 21 August 2026
The judgment was handed down electronically by emailing a copy to the
parties. The 21
st of August 2026 is deemed to be the date of delivery of this
judgment.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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JUDGMENT
NAVSA, AJ
Introduction
[1] The applicant (Mr Khuzwayo) seeks an order reviewing and setting aside a
condonation ruling made by the second respondent (Commissioner) on
6 March 2021 in terms of section 158(1)(g) read together with section 145 of
the Labour Relations Act1 (the LRA).
[2] The Commissioner did not grant Mr Khuzwayo’s application for condonation
of the late referral of his unfair labour practice dispute to the first respondent
(the GPSSBC).
[3] The third respondent (The Minister for Public Service and Administration)
opposed the review application.
Relevant background facts
[4] On 17 March 2020, Mr Khuzwayo lodged an internal grievance concerning the
job evaluation for the post of Director: Human Resource Development
Strategy.
[5] On 13 August 2020 , Mr Khuzwayo referred an unfair labour practice dispute
to the GPSSBC concerning post grading and sought retrospective payment.
[6] On 22 September 2020, Mr Khuzwayo received the outcome of his internal
grievance regarding the job evaluation. Mr Khuzwayo was advised that the
Director General had approved on 23 December 2019 that all job evaluation
requests for filled posts be suspended until the implementation of the
reviewed structure.
1 No. 66 of 1995, as amended.
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[7] On 2 November 2020, Mr Khuzwayo resubmitted the same unfair labour
practice dispute to the GPSSBC, without a condonation application.
[8] In January 2021, Mr Khuzwayo then re-referred his unfair labour practice
dispute to the GPSSBC, on this occasion, together with an accompanying
condonation application.
[9] On 6 March 2021, the Commissioner issued a condonation ruling in terms of
which Mr Khuzwayo was not granted condonation. It is this condonation
ruling which forms the subject matter of Mr Khuzwayo’s review application.
The condonation application before the Commissioner
[10] Mr Khuzwayo indicated , by way of background, t hat the dispute arose on 10
March 2020 and that the referral was late by some 213 days.
[11] Mr Khuzwayo explained that the reason for such lateness included the initial
referral in August 2020, and the resubmission of the referral in November
2020. He had not sought condonation at that stage (November 2020) as he
was still awaiting the response of his internal grievance and did not want to
prematurely refer his unfair labour practice dispute to the GPSSBC.
[12] Under prospects of success, Mr Khuzwayo, placed reliance on the job
evaluation and the job analysis conducted as the basis for his prospects of
success in his unfair labour practice referral.
[13] Concerning prejudice, Mr Khuzwayo , indicated that all internal procedures
had been exhausted, and that the delayed outcome to the grievance that he
had lodged was beyond his control.
The Commissioner’s findings
[14] The Commissioner , in determining whether Mr Khuzwayo’s application for
condonation should be granted, surveyed the arguments advanced by Mr
Khuzwayo.
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[15] The Commissioner, in her analysis of the evidence and argument in the
condonation application, found that the approximate 7-month period of delay
was substantial and warranted a reasonable and satisfactory explanation.
[16] The Commissioner noted that as the dispute, on Mr Khuzwayo’s version,
arose on 10 March 2020 that both the initial referral on 13 August 2020 and
the resubmission of the referral in November 2020 should have been
accompanied by a condonation application.
[17] The Commissioner noted that it was only the re-referral in January 2021, that
contained a condonation application for the first time.
[18] The Commissioner found that the reason offered for the lateness by Mr
Khuzwayo, that he wanted to avoid a premature referral on the basis that he
was waiting to exhaust internal processes before referring his unfair labour
practice dispute to the GPSSBC , to be premised on an incorrect argument ,
given that the unfair labour practice already arose on 10 March 2020.
[19] The Commissioner, after having examined the relevant authorities, ultimately
found that Mr Khuzwayo failed to provide a reasonable explanation for the full
period of the delay , and that even though there was no need to consider
prospects of success, that Mr Khuzwayo’s dispute and the relief sought by
him did not fall within the ambit of the definition of an unfair labour practice.
[20] The Commissioner also found that she did not have the power to order the
conducting of a job evaluation or for the employer to conduct such a process
during the arbitration.
[21] The Commissioner accordingly did not grant Mr Khuzwayo’s application for
condonation.
Mr Khuzwayo’s review grounds
[22] Mr Khuzwayo seeks a review of the condonation ruling dated 6 March 2021,
in terms of section 158(1)(g) read together with section 145 of the LRA.
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[23] Mr Khuzwayo asserts that the Commissioner erred in finding that he had
failed to provide a reasonable explanation for the full period of the delay . The
period between March 2020 and August 2020 was explained by Mr Khuzwayo
having exhausted all internal remedies, namely the grievance procedure.
[24] Mr Khuzwayo contends that the Commissioner misdirected herself in finding
that he failed to provide a reasonable explanation for the full period of the
delay, and in finding that the dispute does not fall within the ambit of the
definition of an unfair labour practice dispute.
[25] Mr Khuzwayo submits that the Commissioner failed to apply her mind, did not
properly consider the evidence before her, handed down a condonation ruling
that was not justifiable on the evidence, and reached a decision that a
reasonable decision maker could not reach. In so doing the Commissioner
committed a gross irregularity in the conduct of the proceedings.
[26] Mr Khuzwayo’s further review grounds centred around the Commissioner ’s
failure to properly consider the facts around the referrals made in August 2020
and November 2020, and that the delay in referring the unfair labour practice
dispute was due to him awaiting the outcome of the grievance.
Relevant legal principles
[27] Sidumo and another v Rustenburg Platinum Mines Ltd and others 2 is the
prevailing authority on when a decision of an arbitrator is reviewable in terms
of section 145 of the LRA. The question to be asked being: Is the decision
reached by the Commissioner one that a reasonable decision maker could not
reach?
[28] The Supreme Court of Appeal, Labour Appeal Court, and Labour Court, in its
subsequent jurisprudence has clarified the review test.3
2 (2008) 28 ILJ 2405 (CC) at page 59, paragraph 110.
3 Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA)
page 2803 where the SCA clarified that a result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was placed before the arbitrator; See also Gold
Fields Mining SA (Pty) Ltd v CCMA [2014] 1 BLLR 20 (LAC) at page 26 paragraph [20] which sets out
the proper questions to be asked in terms of a review under section 145(2)(a)(i) and (ii) of the LRA;
See also Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) at
6
[29] The failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be an irregularity, but
before such an irregularity will result in the setting aside of the award, it must
in addition reveal either a misconception of the true enquiry or result in an
unreasonable outcome.4
[30] The Labour Appeal Court 5 has emphasised that an arbitration award will be
considered to be reasonable when there is a material connection between the
evidence and the result. Conversely, an arbitration award will be deemed to
be unreasonable if it is entirely disconnected from the evidence, unsupported
by any evidence and involves speculation by the arbitrator.
[31] Where an applicant seeks to review a condonation ruling, there is an
additional obstacle.
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[32] Condonation, it ought to be remembered, is a discretionary remedy with this
Court required to be mindful of the narrow scope for interfering with the
exercise of such discretion by a Commissioner based on the multi factor test
applicable to condonation applications.
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[33] In order to upset the Commissioner’s exercise of a discretion on review an
applicant would be required to show, inter alia , that the C ommissioner
committed a misdirection or irregularity , or that the Commissioner acted
capriciously, on wrong principle, or in bad faith, or unfairly, or that in
paragraphs [30] to [33]; See also Shoprite Checkers v Commission for Conciliation, Mediation and
Arbitration & Others [2015] 10 BLLR 1052 (LC) at paragraphs [9] and [10] which dealt with
determining when a failure by a Commissioner to consider facts will be reviewable; See also
Democratic Nursing Organisation of SA on behalf of Du Toit & another v Western Cape Department
of Health & Others (2016) 37 ILJ 1819 (LAC) at paragraph [15]; See also Makuleni v Standard Bank
of South Africa (2023) 44 ILJ 1005 (LAC) at paragraphs 2 and 3.
of South Africa (2023) 44 ILJ 1005 (LAC) at paragraphs 2 and 3.
4 Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) at paragraphs [30]
to [33].
5 Quest Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v
Lebogate (2015) 36 ILJ 968 (LAC); See also Bestel v Astral Operations Ltd & others [2011] 2 BLLR
129 (LAC)
6 Duma v CCMA and others (JR1041/14) [2020] ZALCJHB 154 (25 August 2020) at paragraph 5.
7 Lunguza Lilian and 33 Others v CCMA & others (J215/21) [2025] ZALCJHB 454 (29 September
2025) at paragraph 19.
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exercising their discretion the Commissioner reached a decision that a
reasonable decision maker could not reach. 8
[34] If a Commissioner has exercised such discretion judiciously and fairly after
considering all relevant factors, then this Court will not interfere with the
exercise of such discretion. 9
Evaluation
[35] In terms of section 191(1) of the LRA the referral of an unfair labour practice
dispute must be made within 90 days of the act or omission which allegedly
constitutes the unfair labour practice.
[36] Section 191(2) of the LRA allows the council or the Commission to permit the
employee to refer the unfair labour practice dispute after the 90- day period
has expired, on good cause shown.
[37] Mr Khuzwayo’s unfair labour practice dispute arose on 10 March 2020. Both
Mr Khuzwayo’s initial referral on 13 August 2020 and resubmitted referral in
November 2020 already fell outside of the prescribed time frames in section
191 of the LRA, and neither were accompanied by a condonation application.
[38] The ultimate referral by Mr Khuzwayo in January 2021 was 213 days, or
approximately seven months, late.
[39] The Commissioner found that this period of delay was substantial and
warranted a reasonable and satisfactory explanation. The Commissioner was
not satisfied with the explanation tendered by Mr Khuzwayo that he was
awaiting the outcome of his grievance before referring his unfair labour
practice dispute.
[40] On 22 September 2020, Mr Khuzwayo received the outcome of his grievance
and any period of delay in bringing his unfair labour practice referral, post
September 2020, would have required further explanation.
8 Duma v CCMA and others (JR1041/14) [2020] ZALCJHB 154 (25 August 2020) at paragraph 5; See
also Cowley v Anglo Platinum & others [2016] JOL 35884 (LC) at paragraph 21.
9 Duma v CCMA and others (JR1041/14) [2020] ZALCJHB 154 (25 August 2020) at paragraph 5.
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[41] There was also nothing that prevented or precluded Mr Khuzwayo from
referring his unfair labour practice dispute to the GPSSBC timeously, even
though the internal grievance process was still ongoing.
[42] Notwithstanding the Commissioner’s view that Mr Khuzwayo’s failure to
provide a reasonable explanation for the full period of the delay was sufficient
justification for dismissing his condonation application, the Commissioner still
considered Mr Khuzwayo’s prospects of success in the unfair labour practice
dispute.
[43] The Commissioner, in being thorough , found that there were no prospects of
success as the referral did not fall within the ambit of the definition of an unfair
labour practice and that the relief sought was not competent. The dispute, as
framed, is not one that is arbitrable in terms of the LRA.
[44] It was ultimately Mr Khuzwayo’s failure to provide an explanation for the full
period of the delay and to establish prospects of success that meant that Mr
Khuzwayo had failed to show good cause for condonation to be granted.
[45] The Commissioner properly applied her mind to the determination of whether
good cause existed to grant condonation in terms of section 191(2) of the
LRA. The Commissioner’s ruling considered the interests of justice and is
reasonable.
[46] Mr Khuzwayo failed to explain, on review, why the Commissioner’s ruling was
not made judicially, was biased, was influenced by wrong principles,
capricious, or was materially influenced by a sufficient misdirection to justify
that the Commissioner acted improperly or unreasonably.
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[47] Mr K huzwayo’s grounds of review accordingly have no merit. The
Commissioner’s condonation ruling demonstrates that she exercised her
discretion judiciously and fairly after considering all relevant factors and that it
is reasonable.
10 Duma supra note 6 at paragraph 5.
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Costs
[48] With reference to the issue of costs, this Court has a broad discretion to make
costs orders in accordance with the requirements of law and fairness.
[49] In the Court’s view, the interests of justice will best be served by making no
order as to costs.
[50] In the result, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
ZM Navsa
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Kietzmann & Weideman Attorneys
For the Third Respondent: Advocate M H Mhambi
Instructed by: The State Attorney