THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 1622/24
In the matter between:
JACOB MOGALE HLAHASOANE Applicant
and
THE COMMISION FOR CONCILIATION
MEDIATION AND ARBITATION First Respondent
COMMISIONER MUSOLWA RAPALANE Second Respondent
THE SOUTH AFRICAN POLICE SERVICE Third Respondent
THE MINISTER OF POLICE Fourth respondent
THE GUATENG PROVINCIAL
COMMISSION OF POLICE Fifth Respondent
THE CHIEF EXECUTIVE OFFICER
OF POLMED MEDICAL AID SCHEME Sixth Respondent
Heard: 21 October 2025
Delivered: 21 August 2026
(1) Reportable: No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
MOGANE, AJ
Introduction
[1] This is an application brought in terms of section 158 (1)(g), read together
with section 145 of the Labour Relations Act 1 (the LRA), to have the
condonation ruling issued by the second respondent under case number
GATW1059-24 reviewed and set aside. The condonation ruling is dated 15
August 2024.
Background Facts
[2] The applicant was employed by the third respondent on 23 June 2004 as a
police officer. He resigned from his employment on 30 May 2015. In October
2016, the applicant was re- employed by the third respondent and was
stationed at Muldersdrift Police Station.
[3] Whilst on duty, the applicant was attacked by a mob. As a result of the attack,
he sustained severe trauma and, amongst other injuries, his kidneys were
affected, necessitating dialysis three days a week.
[4] Following the incident, the applicant underwent various medical assessments
and was eventually medically boarded by the third respondent. Dissatisfied
with what had transpired, the applicant referred an unfair labour practice
dispute to the first respondent.
[5] On 15 August 2024, arbitration proceedings were convened and in those
proceedings the applicant had to deal with an application for condonation for
the late referral of his dispute. The condonation application, which was
opposed, was decided on the papers.
1 1 Act 66 of 1995, as amended.
3
[6] Thereafter, the second respondent issued a condonation ruling in terms of
which the applicant’s unfair labour practice dispute was not condoned and the
condonation application was dismissed.
[7] Aggrieved by the condonation ruling, the applicant launched the present
review application seeking an order to review and set aside the condonation
ruling issued by the second respondent.
[8] It is this review application that this Court is called upon to determine. The
review application is unopposed.
Grounds of review
[9] It is trite that the grounds of review are to be set out in both the applicant’s
founding affidavit and supplementary affidavit2.
Founding affidavit
[10] The grounds of review in the founding affidavit are verbatim stated as follows:
10.1 The first ground: “Unfair labour practice by my employer, SAPS.”
10.2 The second ground is that: ‘The ruling is about condonation, and I
already filed condonation forms at the CCMA Pretoria.’
10.3 The third ground is that: ‘Captain Phiri and SAC Selinah of Muldersdrift
Police Station made me sign all documents whilst I was hospitalised at
Krugersdorp Hospital on 1 November 2023.’
10.4 The fourth ground is that: ‘The police failed to report my incident of 15
May 2022 on time to Compensation after I was attacked whilst officially
on duty.’
10.5 The fifth ground is that: ‘The police made a serious mistake by placing
me off duty in terms of the exit mechanism and exit rules 14.4(b) and
14(f), and refused to rectify it three times through the G.E.P.F.’
2 See: De Beer V Minister of Safety and Security and Others (2013) 32 ILJ (LC) at para 30.
4
[11] Having regard to these grounds, it is my considered view that they do not
address what the condonation ruling states. Instead, they provide a history of
the matter.
[12] The condonation ruling records that the applicant referred his dispute to the
first respondent on 19 July 2024 and, in that referral, asserted that the dispute
arose on 2 May 2022. The applicant further stated in his referral that he was
constructively dismissed in November 2022. The second respondent therefore
found that the referral was 719 days late, which was excessive. The applicant
must accordingly convince this Court why the decision of the second
respondent is unreasonable.
[13] Van Niekerk J had the following to say in Mooki v CCMA and Others
3:
‘In the present instance, the applicant’s grounds for review are not cast in
terms that reflect the enquiry that the Court must undertake. In particular, the
grounds articulated both in the founding and supplementary affidavits do not
make out a case to the effect that the outcome of the proceedings under
review was one that fell outside the band of decisions to which a reasonable
decision-maker could come on available material …My conclusions in regard
to all the grounds of review raised by the applicant, as would appear from
those canvassed below, is that none of them properly found the basis for
intervention by this court.’
[14] Considering what Van Niekerk J stated above , it is thus my view that the
applicant’s grounds of review alone do not found a basis for the inquiry that
this court must undertake. The applicant’s grounds in his founding affidavit are
not well articulated.
[15] Perhaps the applicant may be assisted by his supplementary grounds for
review.
Supplementary affidavit and respondent’s argument
[16] The applicant starts by giving a detailed history of the matter, which relates to
how he was injured and what subsequently followed. He underwent various
3 (JR772/15) [2017] ZALCJHB 173 (3 February 2017) at para 9 and 10
5
assessments and was made to sign retirement forms whilst he was sick in
hospital. He asserts that he did not understand what he was signing at the
time. His wife signed at a later stage as a witness. He subsequently made
representations after contacting his union. He did not receive an outcome
and, based on that, he referred the matter to the Commission for Conciliation,
Mediation and Arbitration ( CCMA) because he could no longer wait for the
outcome of the representations.
[17] According to the applicant, he referred his dispute on time but was then
informed by an official at the CCMA that his referral was late and that it should
therefore be accompanied by a condonation application.
[18] According to t he applicant , the second respondent thus failed in his
assessment o n the papers before him and thus the second respondent
committed misconduct in relation to his duties, committed gross irregularity in
the arbitration proceedings, exceeded his powers, the award was improperly
obtained, committed errors of law, failed to apply his mind and made errors of
fact.
[19] The main thrust of the applicant’s ground is that, at the time he referred the
dispute, he was still awaiting the outcome of his representations. He therefore
submits that this rendered the referral timeous and that the statement that the
dispute arose on 2 May 2022 was an error which the second respondent
ought to have realised.
[20] The third respondent, on the other hand, stated that the applicant had 90 days
within which to refer his dispute, as envisaged in section 186 (2)(b) of the
LRA. The applicant’s referral was therefore late because the applicant had
stated in his referral form that the dispute arose on 2 May 2022.
[21] The third respondent further stated that the applicant applied for ill -health
retirement and that it was approved following various recommendations by
doctors after examining him.
6
[22] Furthermore, the applicant failed to indicate the degree of lateness. The
applicant stated that he was unaware of the applicable time limits. This
explanation was not sufficient, and the referral was more than 730 days late.
[23] The third respondent further stated that the issue of the pension fund and
medical aid was not regulated by the third respondent. Accordingly, the
applicant was required to take those issues up with the relevant entities and
not with the second respondent.
Evaluation
[24] The complaint by the applicant that when he signed to be boarded off on ill -
health, he was in hospital and therefore didn’t understand what he was
signing for is without merit. Since the arbitration was decided on papers, I had
regard to the arbitration proceedings record relied on at the first respondent.
The applicant avers that he was in hospital on 01 November 2023
4 when he
signed the statement accepting the medical boarding certificate, statement
which indicates that he is accepting to be boarded off on ill health.
[25] By the same token, he avers that he was not aware that the acceptance letter
is the same as the one he signed on 11 September 20235.
[26] In my considered view that if he accepted to be medically boarded in
September 2023, it is of no consequence that he signed the acceptance letter
in November whilst in hospital. I say so because those letters are identical in
words except that they are dated differently. Furthermore, and to make
matters worse for the applicant, on 09 May 2023, the applicant was assessed
by Dr. Z.A.E Mo tala and the said Dr. recommended in the psychiatric report
as follows: “permanent incapacity should be considered.”
[27] On27 July 2023, he was seen by Dr. Clementine Chawane and the report of
the said Dr. stated: “He is still not fit to return to work and it is less likely that
he will improve from his condition which then renders him permanently
incapacitated and he should thus be considered for permanent disability”.
incapacitated and he should thus be considered for permanent disability”.
4 Page 76 of the arbitration proceedings bundle.
5 Page 77 of the arbitration bundle.
7
[28] The applicant, in my view, at all times applied to be boarded off sick and his
doctors recommended that too.
[29] In casu, the applicant in both his founding and supplementary affidavit makes
no mention of this. It is thus not the fault of the third respondent that he was
boarded off sick. The applicant is thus looking at the ruling in a piecemeal
fashion and not in the totality.
[30] In my view t he applicant was not kept in the dark about the issue that he will
be boarded of f due to ill -health or incapacity. I say so because on 5 June
2023 there is a letter from one Captain AS Janse van Ransberg which letter
indicates the application for ill – health retirement has been considered and in
the said letter various documents, “inter alia, his identity document was
requested for such purposes”.
[31] In Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others 6, the Labour Appeal
Court held thus:
“In a review conducted under section 145(2)(a)(ii) of the LRA, the reviewing
court is not required to take into account each factor individually, consider
how the arbitrator treated and dealt with each of those factors and then
determine whether a failure by the arbitrator to deal with one or some of the
factors amounts to a process -related irregularity sufficient to set aside the
award. This piecemeal approach of dealing with the arbitrator’s award is
improper as the reviewing court must necessarily consider the totality of the
evidence and then decide whether the decision made by the arbitrator is one
that a reasonable decision-maker could make.”
[32] In Academic and Professional Staff Association V Pretorius NO and Others 7
the court held as follows:
“The factors which the court takes into consideration when assessing whether
grant condonation are: (a) the degree of lateness or non-compliance with the
prescribed time frame; (b) the explanation for the lateness or failure to comply
prescribed time frame; (b) the explanation for the lateness or failure to comply
6 [2014] 1 BLLR 20 (LAC) at para 18.
7 (2008) 29 ILJ 318 (C) para 17
8
with the time frame; (c) Prospects of success or bona fide defence in the main
action; (d) the importance of the case; (e) the respondent’s interest in the
finality of the matter; (f) the convenience of the court; and (g) avoidance of
unnecessary delay in the administration of justice.”
[33] It is also trite law that these factors are not individually decisive but are
interrelated and must be weighed against each other. On weighing, 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 for an inadequate and long delay.
[34] In NUMSA and another v Hillside Aluminium 8, Murphy A.J held that an
unsatisfactory explanation for the delay will normally be fatal to an application
irrespective of the applicant’s prospects of success.
[35] The ground raised regarding the referral of the unfair labour practice being
referred on time will be dealt with due regard being had to the applicant’s
referral forms to the first respondent and the condonation application that
accompanied the referral.
[36] On the material that was before the second respondent, the applicant stated
that the date on which the dispute arose is 02 May 2023.That being the case,
it is trite that in terms of s ection 191(1)(b)(ii) of the LRA, the referral must be
made within 90 days of the date of the act or omission. The first respondent
found that the referral was 730 days late and the explanation provided was
not adequate. This is indeed excessively late and the finding by the first
respondent is reasonable.
[37] On the degree of lateness, the applicant furnished no reasons at all when
regard is heard to his condonation application. This is fatal to the applicant’s
review application. He ought to have stipulated, what the degree of lateness
is.
[38] The second respondent was never furnished with reasons why the review
application was late. The applicant’s assertion that he simply did not know
application was late. The applicant’s assertion that he simply did not know
8 [2005] 6 BLLR 601 (LC).
9
that there is a time limit within which to submit forms, as he calls it, is
unsustainable. Mind you, this is someone who has stated in his founding
affidavit that he has completed forms for condonation at the CCMA in
Pretoria. In any event, i t is a well-established fact that ignorance of the law is
not an excuse. This assertion can thus not assist the applicant. Various
judgments of this court have pronounced on that aspect. If the applicant did
not know the law, he should have sought legal advice.
[39] In my view, the second respondent came to the correct conclusion that the
explanation provided by the applicant is inadequate. In actual fact, there is no
explanation at all other than applicant asserting that he never knew of time
limits.
[40] It needs no repeating and it is well established that condonation is not there
for the mere taking. Also, a party seeking condonation should give a full and
accurate account of the causes of delay 9. This principle has on numerous
occasions been echoed by different decisions of this court10.
[41] In this case before me, the applicant then makes the averment that the
second respondent was just flipping through the pages and that if he had
gone through the papers dili gently, the second respondent would have
realised that when the applicant referred the dispute at the first respondent,
he would have realised that the referral was on time and there was no need
for condonation. The applicant further said that even if he was late, ( wrongly
as he puts it), the applicant would have been late by 138 days, as opposed to
730 days.
[42] This creates in my view, a problem for the applicant. The applicant, if he feels
that way ought to have addressed all of this with the second respondent. The
applicant cannot address this issue with this court. That assessment by the
9 In Nair v Telkom SOC Ltd and Others (JR59/2020) [2021] ZALCJHB 449 (7 December 2021) Sass
9 In Nair v Telkom SOC Ltd and Others (JR59/2020) [2021] ZALCJHB 449 (7 December 2021) Sass
AJ, at para 19 thereof, was correct in saying significant with a determination of such applications is
that condonation cannot be had for the mere asking and a party is required to make out a case
entitling it to the court indulgence by showing sufficient cause, and give a full, detailed and accurate
account of the courses of the delay. In the end the explanation must be reasonable enough to excuse
the default.
10 Mulandzi V Old Mutual Life Assurance Company ( South Africa) Limited . 2017 (6) SA 90 (SCA) at
para 6.
10
applicant is fundamentally flawed and should fail. The applicant cannot have
mutually exclusive versions on when the unfair labour practice occurred. On
one hand, he did not know the rules of the second respondent with regards to
the time frames for referral and on the other hand he says his referral was on
time. And on the other hand, he also says he has a condonation application at
the CCMA in Pretoria.
[43] In a condonation application, the entire period of the delay ought to be
explained. In casu, the applicant failed to provide an explanation for the delay.
Therefore, this court has nothing to consider in terms of the explanation for
delay other than the assertion by the applicant that he had no knowledge of
time limits within which to refer a dispute to the second respondent.
[44] Borrowing from Prinsloo J in Ntukwana v The Minister of Home Affairs and
Others
11 said:
“The approach that, in the absence of a satisfactory explanation for a delay,
the applicant’s prospects of success are ordinarily irrelevant, has been
conventionally applied … and without a reasonable and acceptable
explanation for a delay, the prospects of success are immaterial.”
[45] However, in the interests of justice, re garding prospects of success, the
applicant mentioned that he wants the third respondent to pay all the benefits
related to ill-health retirement, his salary and medical aid.
[46] The second respondent traversed this issue of prospects of success and
came to a correct conclusion. The applicant wants to be paid whilst he was
boarded on ill health. He was paid his benefits in a lump sum and in my view,
the other extra payments that he requires , as the second respondent has
articulated, can’t be adjudicated by him i.e. to be looked after by the SAPS
and be paid for ill -health and psychiatric conditions. This is contained in the
applicant’s referral form.
11 (JR2511/2023) [2024] ZALCJHB 487 (5 December 2024) at para 14.
11
[47] The ground that the second respondent exceeded his powers ought to fail too.
The applicant has failed to pinpoint to this court where or how the second
respondent exceeded his powers.
[48] In Williams v CCMA and Others12, Whitcher J had this to say:
“When considering applications for condonation, commissioners enjoy a white
discretion. Accordingly, a reviewing court should be cautious when interfering
with such rulings. The test for review is whether it can be said that the
discretion was not exercised judicially: it has been exercised ‘capriciously , or
upon a wrong principle, or in a biased manner, or for substantial reasons with
no regard to the applicable principle for condonation principles.”
[49] It is therefore my considered view that the second respondent did not commit
any irregularity, applied his mind to the material before him, he did not exceed
his powers, he did not fail to deal with the issues before him.
[50] The second respondent came to a decision that is correct, and therefore his
award ought to be not interfered with.
[51] With regards to costs, I am inclined to follow section 162 of the LRA.
According to this section, I have a discretion to make an order according to
law and fairness. Fairness dictates that no order as to costs be issued.
[52] In the premises the following order is made:
Order
1. The application to have the second respondent’s condonation ruling
reviewed and set aside is dismissed.
2. There is no order as to costs.
12 (C 267/2024) [2025] ZALCCT 17 (7 March 2025)
12
C. Mogane
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Self-represented
For the Respondent : Unrepresented