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[2026] ZALCCT 150
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Adams v General Public Service Sectoral Bargaining Council and Others (C477/2023) [2026] ZALCCT 150 (4 September 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No:
C477/2023
(1)
Reportable: No
(2)
Of interest to other Judges: No
(3)
Revised: No
4
September 2026
In
the matter between:
GAVIN
ADAMS
Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
COMMISSIONER
BURTON N.O.
Second Respondent
DEPARTMENT
OF ECONOMIC DEVELOPMENT
AND
TOURISM
Third Respondent
Heard
:
2 September 2026
Delivered
:
4 September 2026
JUDGMENT
DE KOCK, AJ
Introduction
[1]
Dr Gavin Adams applies to review and set aside a condonation ruling
of the second respondent, Commissioner Adv C P Burton
NO (the
commissioner), issued under the auspices of the General Public
Service Sectoral Bargaining Council in case GPBC 1716/2022
on 15 May
2023. The ruling refused condonation for the late referral of an
unfair labour practice dispute concerning promotion
and shortlisting.
The applicant appeared in person.
[2]
The first respondent is the General Public Service Sectoral
Bargaining Council (the GPSSBC), under whose auspices the
ruling was
made. The second respondent is the commissioner whose ruling is
impugned. Neither has taken part beyond the dispatch
of the record.
The third respondent is the Department of Economic Development and
Tourism (the Department). It opposes the review.
It filed an
answering affidavit deposed to by Mr Philmacs Bogenhagen on 6
December 2023, and heads of argument, and was represented
at the
hearing by Mr Tsegare.
[3]
The notice
of motion seeks the review of ‘
The
GPSSBC Condonation and Rescission Ruling; the latter dated 30 August
2023’
.
In the rescission ruling the commissioner set out s 144 of the Labour
Relations Act (the LRA),
[1]
held
that none of its four grounds was made out, recorded that he was
functus
officio
,
and told the applicant that his recourse lay in a review to this
Court. At the hearing the Court put to the applicant that the
two
rulings are different rulings, and that the rescission ruling, on its
face, correctly directed him to this Court. The applicant
accepted
that. He told the Court that he had regarded the two as ‘
inextricably
linked’
,
that the condonation ruling ‘
is
actually the matter at hand’
,
and that ‘
the
review would then probably be focused on the condonation’
.
The Court proceeds on that footing. The rescission ruling is not in
issue, and nothing in this judgment disturbs it.
[4]
One further preliminary matter was raised by the Court. The
condonation ruling issued on 15 May 2023. The notice of motion
was
signed on 19 September 2023, and the papers were delivered on 20
September 2023, some four months later. No application for
condonation of the late launching of the review appears in the
bundle. The applicant explained that he had calculated the time
from
the rescission ruling of 30 August 2023, the two rulings being linked
in his mind. The Department, asked whether it took the
point, said in
terms that it did not: it would rather have the matter ventilated and
finally decided than have it come back. The
point is dealt with
below, in the context of the Department’s submission on the
section under which the review is brought.
Background
[5]
The dispute concerns the applicant’s non-shortlisting for the
post of Chief Director: Skills Development and Innovation
in the
Department, advertised in December 2019 with a closing date of 20
January 2020. The advertisement told candidates that if
they had not
heard from the Department within ten weeks of the closing date, they
should consider their applications unsuccessful.
The applicant says
that the submission approving the shortlist was signed by the Head of
Department on 28 February 2020. The Department
says that the
executive authority approved the shortlist on 4 March 2020, that
interviews were held on 21 May 2020 and that the
successful candidate
was appointed on 1 December 2020. Nothing turns on the difference.
The applicant was not shortlisted and was
not told.
[6]
The applicant’s case is that he learned that the post had been
filled only on 29 August 2022, when he made contact
with the
Department and was told by email that the recruitment process had
closed during 2020. The Department says that it informed
him in
writing, and the applicant’s own chronology records the
Department’s first response as 7 September 2022. On
7 September
2022 he requested records under the Promotion of Access to
Information Act, and on 15 November 2022 the Department
gave him
written reasons for his non-shortlisting: a score of 68% against a
cut-off of 70%. On 7 November 2022 he referred an unfair
labour
practice dispute to the GPSSBC; the referral was received by the
Department on 9 November 2022, a certificate of non-resolution
issued
on 25 November 2022, and the matter was referred to arbitration on 1
December 2022.
[7]
At the arbitration on 24 February 2023 Commissioner Slamang raised
the lateness of the referral and directed that condonation
be applied
for. The condonation application was filed on 8 March 2023 and
opposed on 24 March 2023. On 15 May 2023, on the papers,
the
commissioner refused condonation. The applicant applied for
rescission in June 2023, and on 30 August 2023 the commissioner
dismissed that application.
The
ruling
[8]
The condonation ruling runs to three pages, of which the analysis
occupies five sentences. At paragraph 10 the commissioner
records
that he has considered the founding and answering affidavits and
cannot accept the applicant’s contention. At paragraph
11 he
finds that ‘
the applicant’s application is
approximately twenty-five months (25) late’;
the word used
is application, not referral. At paragraph 12 he holds that the delay
is excessive and counts against the applicant;
at paragraph 13, that
the applicant did not explain the entire period of the delay; and at
paragraph 14, that it has been established
that the respondent will
suffer prejudice if condonation is granted. He then refuses
condonation.
[9]
The ruling makes no reference anywhere to the applicant’s
prospects of success.
The
Department’s objections to the review
[10]
The Department takes two points at the threshold. The first is that
neither the condonation ruling nor the rescission
ruling is an
‘award’ as contemplated in s 145 of the LRA, that neither
is therefore reviewable under that section,
and that no case has been
made out under s 158. The second is that ‘
absent any
condonation application in relation to the referral of the dispute,
no matter for adjudication exists’
.
[11]
The second point can be disposed of shortly. A condonation
application was made. It was opposed by the Department, and
it was
refused. That refusal is what the applicant seeks to review.
[12]
The first
point does not assist the Department. Whether a ruling refusing
condonation of a late referral is reviewable under s 145
or under s
158(1)(g) is a question on which this Court has not always spoken
with one voice, and the Court has not been referred
to any decision
of the Labour Appeal Court that settles it. What the Department’s
own authority,
NUMSA
and Another v Voltex (Pty) Ltd t/a Electric Centre and Others
(Voltex)
,
held is that a commissioner’s decision on a condonation
application under s 191(2), taken on written submissions, ‘
was
not a decision made within the context of “arbitration
proceedings” as contemplated in section 145’
,
with the consequence that the six-week period in s 145(1)(a) did not
apply and that the ruling fell to be reviewed under s 158(1)(g),
provided the review was brought within a reasonable time.
[2]
That is the approach this Court has continued to take to rulings of
this kind: a rescission ruling under s 144 has been held not
to be an
award within s 145 and to be reviewable under s 158(1)(g) within a
reasonable time (
Melomed
Hospital Holdings (Pty) Ltd v Denosa obo Fourie and Others)
,
[3]
and a condonation ruling has been reviewed under s 158(1)(g) on the
same footing (
Mkhonza
v Masenye NO and Others)
.
[4]
Section 158(1)(g) empowers this Court, ‘
subject
to section 145, [to] review the performance or purported performance
of any function provided for in this Act on any grounds
that are
permissible in law’
,
[5]
and the determination of a condonation application under s 191(2) is
such a function.
Voltex
therefore does not close the door to the applicant; it tells him
which door to use.
[13]
The applicant’s notice of motion invokes s 145. He is a lay
litigant, and he told the Court that he learned of
the distinction
between the two sections only from the Department’s heads of
argument, filed days before the hearing. He
asked, if the section
were an obstacle, to be allowed to amend. Asked whether anything
prevents the Court from treating the application
as one under s
158(1)(g), Mr Tsegare said that it did not, but that the applicant
must still make out his case. That is correct,
and it is the footing
on which the Court proceeds. The section number is wrong; the relief
sought is clear; the Department has
answered the review on its merits
and has suggested no prejudice from the mislabelling. The Court
treats the application as one
under s 158(1)(g), no formal amendment
being necessary, and turns to whether the case is made out.
[14]
On that footing the timing point raised by the Court at [4] is also
answered. The six-week period in s 145(1)(a) does
not apply to a
ruling of this kind; the question is whether the review was brought
within a reasonable time. The applicant received
the condonation
ruling on 15 May 2023, applied for rescission within about six weeks,
was told by the commissioner on 30 August
2023 that his recourse lay
in a review to this Court, and launched the review within three weeks
of being told. The Department,
which alone could claim prejudice,
disclaims it and asks that the matter be decided. The Court holds
that the review was brought
within a reasonable time. Had s 145
applied, the position would have been different: the review would
have been some ten weeks
late and there is no application for
condonation before the Court. It is not necessary to say more about
that, because on the Department’s
own authority s 145 does not
apply.
The
test on a jurisdictional review
[15]
The ruling under review is a jurisdictional ruling. By refusing
condonation for the late referral, the commissioner determined
that
the council could not entertain the dispute unless the delay was
condoned, a matter going to the council’s jurisdiction
to
arbitrate.
[16]
A ruling of
that kind is not reviewed against the reasonableness standard that
governs the merits of an arbitration award. A bargaining
council,
like the CCMA, is a creature of statute and cannot decide its own
jurisdiction; whether it has jurisdiction in a particular
matter is a
question for this Court, and the enquiry is whether, objectively, the
facts which would give the council jurisdiction
existed (
South
African Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v South African Rugby Players
Union and
Another
).
[6]
The commissioner’s view attracts no deference: either the
referral was made within the period fixed by law or it was not,
and
that is a question of fact and law, not of impression. The
Department’s submission, in its heads and again at the hearing,
that the refusal of condonation ‘
constituted
a decision a reasonable commissioner would have made’
accordingly asks the wrong question.
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(
Sidumo
)
[7]
and
Herholdt
v Nedbank Ltd
(
Herholdt
)
[8]
govern the review of the merits of an award. They do not govern a
ruling on jurisdiction.
[17]
Two
consequences follow. The validity of proceedings before a statutory
tribunal depends on the objective existence of the jurisdictional
facts, not on any finding about them; a council may not grant itself
a jurisdiction it does not have, nor deprive itself of one
it has.
[9]
It follows that a party’s concession cannot supply what the
facts do not: if the referral was in time, no estimate by the
applicant of how late it was could make it late. And where a point of
law is apparent on the papers and the parties have proceeded
on a
wrong perception of what the law is, a court is not merely entitled
but obliged to raise it and require the parties to deal
with it (
CUSA
v Tao Ying Metal Industries and Others
)
[10]
.
The Court did so at the hearing, and both parties addressed it. The
point is not one pleaded in the founding affidavit, and Mr
Tsegare
rightly said that the founding affidavit is thin; but a point which
the Court is obliged to raise of its own motion does
not fail because
a lay litigant did not plead it.
Section
191(1)(b)(ii) and the date the dispute arose
[18]
The date of the referral is not in doubt. The Department’s own
answering affidavit in the condonation application
records that the
referral was signed on 7 November 2022 and received on 9 November
2022, that a certificate issued on 25 November
2022, and that the
matter was referred to arbitration on 1 December 2022. The
condonation application itself was filed on 8 March
2023. The
statement in the rescission ruling that the dispute was referred on 3
May 2023 is contradicted by every other document
in the record and
must be treated as an error.
[19]
What was
genuinely in dispute was a different question: the date on which the
dispute arose. Section 191(1)(b)(ii) of the LRA requires
an unfair
labour practice dispute to be referred within 90 days of the act or
omission complained of
or,
if it is a later date, within 90 days of the date on which the
employee became aware of the act or occurrence
.
[11]
[20]
The applicant’s referral gave 29 August 2022 as the date the
dispute arose, that being the day on which he made
contact with the
Department and was told that the post had been filled in 2020. If
that is correct, the referral on 7 November
2022 was made on day 70,
was within time, and no condonation was required. The same is true if
the operative date is 7 September
2022, the date his own chronology
gives for the Department’s first response.
[21]
The Department joined issue with that squarely. It recorded the
applicant’s reliance on 29 August 2022, set out
s 191(1)(b)(ii)
and the 90-day period, and stated in terms that it ‘
disputes
the fact that the dispute arose on 29 August 2022’
. It
relied on the advertisement, which closed on 20 January 2020 and told
candidates:
‘
Therefore,
should you not hear from us within 10 weeks from close of advert
please consider your application as unsuccessful.
’
[22]
On that footing it contended that the dispute arose on or about 1
April 2020, making the referral about 32 months and
nine days late;
alternatively, that the successful candidate was appointed on 1
December 2020, making the referral about 24 months
and nine days
late, which, it said, ‘
confirms the Applicant’s
admission at paragraph 3.1 of the Applicant’s affidavit’
,
that is, the applicant’s own estimate of 25 months. At
the hearing Mr Tsegare put the Department’s case in the
same
way: on the applicant’s own version the dispute arose on 29
August 2022, but the applicant ought to have regarded himself
as
unsuccessful ten weeks after the closing date, the website on which
he relied was but one means of finding out, and nothing
prevented him
from telephoning or emailing the Department in 2020, as he eventually
did in 2022. That is an argument about when
the applicant ‘
became
aware’
for the purposes of s 191(1)(b)(ii); whether actual
knowledge is required, or whether it is enough that he ought to have
known
and it is a real argument. It is also one that the commissioner
never addressed.
[23]
Both parties thus placed the very question posed by s 191(1)(b)(ii)
directly before the commissioner, and they placed
it on competing
factual footings. The commissioner resolved none of that competition.
He did decide that the referral was late;
that much is implicit in
his refusal of condonation, but he did so by adopting ‘
approximately
twenty-five months’
, the applicant’s own rough
estimate. It may be said for the ruling that 25 months is within
three weeks of the Department’s
alternative case, and that the
commissioner must be taken to have adopted 1 December 2020 as the
date on which the dispute arose.
The Court is unable to read the
ruling in that way. It nowhere mentions 1 December 2020, or 1 April
2020, or 29 August 2022. It
nowhere mentions s 191(1)(b)(ii), or the
date on which the applicant became aware of the act complained of. It
does not say that
the applicant’s date is rejected, or why. A
finding on the one question the parties had squarely joined cannot be
supplied
by arithmetic. The commissioner proceeded as though the fact
of the delay, and its extent, were common cause, when they were the
heart of what was in dispute. Mr Tsegare, fairly, accepted at the
hearing that the commissioner ‘
was not very clear as to when
exactly the dispute arose’
.
[24]
That is the difficulty at the heart of the ruling, and it is prior to
everything else. If the dispute arose on 29 August
2022, the council
always had jurisdiction and the condonation enquiry did not arise at
all. If it arose in April or December 2020,
the delay was materially
longer than the commissioner found, and the weighing he did undertake
was done on the wrong figure. Either
way, he was required to decide
between the competing dates, and he did not.
[25]
The applicant’s own concessions cannot cure the defect. He
estimated the delay at 25 months in his condonation
affidavit, and
his heads of argument in this Court say that ‘
[b]ecause the
referral occurred outside the prescribed time period, condonation was
required’
. But the estimate was made, on his own account,
‘
in the absence of clarity regarding the precise date of the
appointment’
, and it sits in the same papers as the
referral form which gives 29 August 2022 as the date the dispute
arose and which the Department
expressly disputed. A lay litigant’s
estimate is not a determination of the trigger date, and jurisdiction
is not established
by a party’s concession. The commissioner
was obliged to determine the date for himself.
[26]
A ruling that fixes the extent of the delay at a figure taken from
one party’s estimate, and that never decides
when the dispute
arose, cannot stand, whether the vice is characterised as a failure
to apply the mind to the question the commissioner
was required to
answer or as a decision reached on a wrong premise. On the
correctness standard the ruling is wrong, and it falls
to be set
aside on this ground.
The
failure to consider the prospects of success
[27]
The ruling is open to a further, independent objection. The
condonation affidavit that served before the commissioner
dealt
expressly with the applicant’s prospects of success, under its
own heading: the absence of minutes of the shortlisting,
the alleged
failure of the Department to give specific reasons for the
non-shortlisting, the two comparator curricula vitae obtained
under
the Promotion of Access to Information Act, and the alleged
departures from the Public Service Commission guidelines and
the
Department’s own recruitment policy. The Court records that the
Department did give a reason, on 15 November 2022, and
that it is in
the bundle; whether it was an adequate reason is a matter for the
merits. The point for present purposes is that
the ruling does not
mention any of it. It is likewise silent on the recruitment website
and on the advertisement’s statement
that candidates should
presume finality after ten weeks. The applicant put it accurately at
the hearing: the ruling does not deal
with the reason for the
lateness or with prospects.
[28]
On
Melane
v Santam Insurance Co Ltd
(Melane) the factors relevant to condonation are interrelated and
must be weighed together, a good explanation compensating for
weaker
prospects and the converse.
[12]
A ruling that weighs the extent of the delay, the explanation for it
and prejudice, but says nothing at all about the applicant’s
prospects, has not conducted the weighing the enquiry requires. It
may be said, on
NUM
v Council for Mineral Technology
,
that without a reasonable and acceptable explanation for the delay
the prospects of success are immaterial;
[13]
but that answer presupposes a finding on the trigger date and on the
adequacy of the explanation which the commissioner never made.
[29]
The Court does not, however, accept one subsidiary criticism the
applicant advances. The heads contend that the ruling
both recorded
the delay as 25 months and faulted the applicant for failing to
indicate its extent, and that the inconsistency shows
the affidavit
was not engaged. The ruling bears no such reading: paragraph 13
states that the applicant ‘
did not explain the entire period
for the delay’
, which is a complaint about the completeness
of the explanation, not about a failure to state the duration of the
delay. There
is no inconsistency of the kind alleged.
The
reassignment of the commissioner
[30]
The applicant’s supplementary affidavit complains that
Commissioner Slamang was originally seized with the condonation
application,
that the GPSSBC never determined a recusal application
of 2 May 2023, gave no notice, and never explained how the
commissioner
came to be seized, and that the substitution was
ultra
vires
. The Department answers that the founding affidavit’s
statement that the recusal application ‘
has since failed and
does not form part of this Application’
disposes of the
point, that the supplementary affidavit is an impermissible change of
tack, and that the GPSSBC is in any event
free to assign any
available commissioner. At the hearing the applicant explained that
Commissioner Slamang raised the lateness
at the arbitration and
directed him to apply for condonation, and that the ruling arrived
some months later from a different commissioner.
On that account,
which is the applicant’s own, Commissioner Slamang made a
ruling that condonation was required; he was never
seized with the
condonation application itself, and nothing in the record suggests
that the council allocated it to him. There
was accordingly nothing
irregular in the council placing the application, once the affidavits
were in, before an available commissioner.
The Court put that to the
applicant, who did not contest it and did not return to the point.
The ground fails.
Conclusion
[31]
The condonation ruling of 15 May 2023 turned on a jurisdictional
question, namely whether the referral was made within the period
fixed by s 191(1)(b)(ii), which the commissioner was required to
decide and did not; judged on the correctness standard, it is
wrong.
It also weighed the factors relevant to condonation while saying
nothing about the applicant’s prospects of success.
The ruling
falls to be reviewed and set aside.
[32]
The applicant asked the Court to substitute its own decision rather
than remit, pointing to the time that has passed since 2022.
The
Department, for its part, submitted that remittal would serve no
purpose and that the application should simply be dismissed.
The
Court has considered whether it can itself determine the date on
which the dispute arose. It cannot properly do so on this
record. The
answer turns on whether s 191(1)(b)(ii) is satisfied only by actual
knowledge, or also by knowledge the employee ought
reasonably to have
had (the Department’s ten-week argument), and neither party
addressed the Court on that question with
reference to authority. It
is a question that the council must answer in the first instance, on
the competing cases both parties
have already put up, and the
Department is entitled to be heard on it on a complete record. Nor
can the Court substitute a decision
on condonation itself; the
weighing of explanation, prejudice and prospects is one for the
commissioner. The appropriate order
is to set the ruling aside and to
remit the matter to the council to be determined afresh by a
commissioner other than Commissioners
Slamang and Burton, who must
first determine the date on which the dispute arose and, only if the
referral was late, decide the
application for condonation. Given the
age of the matter, the council is directed to do so expeditiously and
to afford both parties
the opportunity to present their respective
cases in person before a commissioner.
Costs
[33]
Costs in this Court do not follow the result, and s 162 of the LRA
requires the Court to have regard to the requirements of the
law and
of fairness. The applicant sought costs only in the event of
opposition; the Department opposed and asks for costs against
him.
The applicant is a lay litigant who has pursued this matter since
2022, and he has succeeded. The Department’s opposition
was not
unreasonable, and it should not be mulcted in costs for defending a
ruling in its favour. The requirements of law and fairness
are best
met by making no order as to costs.
[34]
In the result, the following order is made:
Order
1.
The application is treated as one under s 158(1)(g) of the LRA.
2.
The condonation ruling of the second respondent dated 15 May 2023
under case GPBC 1716/2022 is reviewed and set aside.
3.
The applicant’s application for condonation is remitted to the
first respondent to be determined afresh by a commissioner
other than
Commissioners Slamang and Burton. Both parties must be afforded the
opportunity to present their respective versions
to the commissioner
in person and the commissioner is directed to first determine the
date on which the dispute arose for purposes
of s 191(1)(b)(ii) of
the LRA and, only if the referral of 7 November 2022 was made outside
the period prescribed, the application
for condonation.
4.
The first respondent is directed to enrol the matter for those
purposes within 30 days of the date of this order.
5.
There is no order as to costs.
C
de Kock
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
In person
For the Third
Respondent:
C Tsegare
Instructed
by:
State Attorney, Cape Town
[1]
Act 66 of 1995, as amended.
[2]
[2000] ZALC 6
;
[2000] 5 BLLR 619
(LC); (2000) 21 ILJ 1173 (LC). The
judgment is not paragraphed.
[3]
[2023] ZALCCT 31 (21 June 2023) at paras 4 to 6 and 9.
[4]
[2024] ZALCJHB 14 (9 January 2024) at paras 1 and 2.
[5]
Section 158(1)(g) of the LRA, as reproduced in
Olympic
Park Trading 126 (Pty) Ltd t/a SKG Properties v Skhosana and Others
[2024] ZALCJHB 263 (28 June 2024) at para 3.
[6]
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC); (2008) 29 ILJ 2218 (LAC) at
paras 39 to 41.
[7]
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC);
[2007] ZACC 22
at para
110.
[8]
(2013) 34 ILJ 2795 (SCA);
[2013] ZASCA 97
at para 25.
[9]
SA
Rugby
,
id fn 6, at para 40, applying
Benicon
Earthworks & Mining Services (Edms) Bpk v Jacobs NO and Others
(1994) 15 ILJ 801 (LAC) at 804C–D.
[10]
[2008] ZACC 15
;
2009 (2) SA 204
(CC); (2008) 29 ILJ 2461 (CC);
[2009] 1 BLLR 1
(CC);
[2008] ZACC 15
at para 67.
[11]
The italicised words are the statutory language, reproduced in
City
of Cape Town v Nevin and Others
[2022] ZALCCT 29;
[2022] 11 BLLR 1016
(LC) at para 59.
Nevin
,
itself an unfair labour practice dispute, emphasises that the
trigger is the employee’s own awareness, and that a dispute
founded on a single act or omission arises at inception rather than
through its continuing effects: at para 56.
[12]
1962 (4) SA 531
(A), as quoted in
NUM
v Council for Mineral Technology
[1998] ZALAC 22
;
[1999] 3 BLLR 209
(LAC) at para 10.
[13]
Id fn 12, at para 10 ([1999]
3 BLLR 209
(LAC) at 211G–H).