IN THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Case No. A2025-095833
Not Reportable
In the matter between:
NHLANHLA MACDONALD NDABA Appellant
And
SOUTH AFRICAN SOCIAL SECURITY
AGENCY First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
YANDA NGWANE N.O. Third Respondent
Date of Hearing 24 February 2026
Delivered: 10 September 2026
2
Coram: Tokota AJA, Moshoana AJA et Collis AJA
This judgment was handed down electronically by circulation to the parties’
representatives by email, published on the Labour Appeal Court website, and
released to SAFLII. The date and time for hand-down is deemed to be at 10h00 on
10 September 2026.
JUDGMENT
TOKOTA AJA
Introduction:
[1] The appellant was employed by South African Social Security Services ( the
respondent) as a Senior Grants Administrator effective from 1 June 2006. On
11 November 2020 he was dismissed for misconduct. His appeal to the
Appeals C ommittee was unsuccessful. He referred a dispu te of unfair
dismissal to the Commission for Conciliation, Mediation and Arbitration ( the
CCMA) where he applied that the dismissal be declare d both substantively
and procedurally unfair. The third respondent (the Commissioner) found that
the dismissal was both substantively and procedurally fair and dismissed the
application. The appellant approached the Labour Court seeking a n order
reviewing and setting aside the arbitration award. The application was
dismissed with no order as to costs. With leave of the Labour Court, the
appellant is appealing against that order.
3
Factual Matrix:
[2] The appellant was employed by the respondent on 1 June 2006. During 2019
he was stationed at the respondent’s branch at Vulindlela Local Office in
Pietermaritzburg, KwaZulu Natal. On 6 August 2019 Ms Mchunu visited the
respondent’s office to apply for a social grant of her grandson. She was
attended by the appellant. The appellant processed Ms Mchunu's grant
application on the system, and the application was declined for the reason,
inter alia, that Ms Mchunu's son (the father of the grandson) was still alive
and resided with the grandson.
[3] Ms Mchunu was not happy with the outcome of her application. On 07
August 2019, she, accompanied by her niece Ms. Sithole, went back to the
respondent’s offices to complain about the manner in which she was dealt
with by the appellant. On their arrival at the offices they were directed to the
appellant's manager's office, Mr. Mdima.
[4] Mr Mdima called the appellant to his office to discuss or enquire about Ms
Mchunu's complaint. When the appellant was in Mr Mdima's office, he
refused to explain what had happened on 06 August 2019 and stated that he
had dealt with Ms Mchunu the previous day. The appellant requested Mr
Mdima to tell the ladies to wait outside because he wanted to explain his side
of the story in their absence. Mr Mdi ma did not accede to the request and
insisted that the appellant should state his version in their presence. The
appellant repeated that he had finished things with them the previous day. Mr
Mdima implored upon him to listen to what Ms Mchunu had to say so that he
could respond thereto. The appellant refused to listen and accused Mr Mdima
of not respecting him whereas he ‘is also a man in his own household’.
4
[5] The evidence which was accepted by the Commissioner was that as the
appellant was not prepared to talk in the presence of the complainant, Mr
Mdima requested the ladies to leave the office to allow the two of them to
have a word in private. He then got up, walked past appellant who was sitting
down and went to open the door for them. As he held the door open and they
approached, appellant shot up from his seat proceeded to the doorway.
According to the ladies’ evidence they just saw appellant suddenly appear and
proceed to hit the manager. One of them went in between the two men to
prevent the manager from hitting the appellant back.
[6] The version of the witnesses slightly differs with regard to the alleged assault
by the appellant. What is clear however, is that a n al tercation occurred
between the a ppellant and Mr Mdima which led to the belief by Mr Mdima
that he was being assaulted. The appellant denies that he assaulted Mr Mdima
but admits that there was a ‘wrestling with the door’ between them. I will deal
with this later in the judgment.
[7] Mr Mdima confirmed that as the ladies were approaching the door, he saw the
appellant appear near him. The appellant pushed, hit him in the chest and
exited the office. He was surprised by the appellant’s actions. After regaining
his senses, he proceeded to the appellant’s office and asked him to return to
his office so that they could discuss the matter. The appellant told him that the
premises were not his (Mr. Mdima's) house so he would not be taking
instructions from him. The ap pellant refused to return to Mr Mdima’s office
as requested.
[8] Soon after the incident Mr Mdima and the ladies went to the nearest police
station to lay charges of assault on Mr Mdima. The police took statements
from them, and these were used in the arbitration proceedings.
5
[9] The appellant’s account of events to a large extent is consistent with the
respondent’s witnesses’ version. He testified that Mr Mdima occupied the
salary level 12 Office Manager position. On 6 August 2019 he assisted Ms.
Mchunu with her application for a social grant for her grandson. He perused
Ms. Mchunu's file, asked her some questions. He advised her that her son
needed to come to their offices the following day. After processing the
application, it was declined and a letter came out from the system. The letter
being in English he explained the contents thereof in Zulu to Mrs. Mchunu
and made her affix her thumbprint as acknowledgment of receipt of the
explanation given in Zulu. He noticed that Ms. Mchunu was not happy after
receiving the letter, so he told her to return with her son for another
application to be done.
[10] He testified further that on the following day he was called by Mr Mdima to
his office. In the office there were two ladies seated at his table, and he took a
seat next to Mr. Mdima. After Mr. Mdima's introduction of the ladies he told
Mr. Mdima that he knew Ms. Mchunu and had dealt with her the preceding
day and told her to return that day with her son. The second lady was
introduced as Ms. Sithole, Ms Mchunu’s niece. He suggested to Mr. Mdima
that the ladies be excused so that he could explain the events of the previous
day without their audience. Mr. Mdima refused and insisted that he should do
so in their presence.
[11] The appellant testified that he repeatedly requested Mr. Mdima to respect him
and excuse the ladies as he could not deal with the matter in the presence of
outsiders. But his pleas fell on deaf ears. He stated that his request was based
on the Basic Conditions of Employment Act provisions requiring that
procedurally, employees be treated with respect. He wanted Mr. Mdima to call
6
them back inside after hearing his side of the story first. Since he did not want
to cause a commotion he walked towards the door, but Mr. Mdima rushed and
blocked it. They wrestled with the door. Whilst he pulled the door to open it
Mr. Mdima pushed. As he was pulling the door, he pulled Mr. Mdima but did
not have physical contact with, push, grab or hit him. He pulled the door
handle, and Mr. Mdima was pulled with the door.
[12] After the door was opened, he walked out and returned to his workstation.
As he sat at the workstation Mr. Mdima came and asked hi m to go to his
office to talk. He testified that a t the backdrop of all the pushing and pulling
of the door, Mr. Mdima's request sounded impossible, in fact he could not
believe it. He was shocked. That morning he left work to take his daughter to
a doctor after receiving a call from her school. He refused to go back to Mr
Mdima’s office. On 23 August 2019 he was suspended from work. On 14
October 2019 he was served with a notice to attend disciplinary hearing. He
was charged with six counts of misconduct. These were subsequently
withdrawn.
[13] On 09 June 2020 the a ppellant was served with a new notice to attend a
disciplinary enquiry. In this new notice, the following charges were preferred
against him. It was alleged that on or about the 7th of August 2019 and at or
near Vulindlela Local Office he displayed an act of insubordination it being
alleged that he assaulted Mr Mdima with an intention to cause him bodily
harm by grabbing him by his clothes and hitting him with a fist (Charge 1).
Further it was alleged that on or about the same date and at the same place he
contravened the Code of Conduct and Ethics together with the culture of
diligence in that he assaulted Mr Mdima with an intention to cause him bodily
harm by grabbing him by his clothes and hitting him with a fist (Charge 2).
7
On charge 3 it was alleged that o n or about the same date and at the same
place he brought the name of SASSA into disrepute by assaulting a SASSA
official, Mr Mdima with an intention to cause him bodily harm by grabbing
him by his clothes and hitting him with a fist.
[14] The appellant attended the disciplinary enquiry and pleaded not guilty to all
three allegations levelled against him. At the end of the disciplinary enquiry,
he was found guilty on charges 1 and 2. He was then dismissed on 11
November 2020.
[15] After an unsuccessful appeal to the Appeals Committee within the
department, on 30 August 2021, the a ppellant referred a dispute of unfair
dismissal to the CCMA. The dispute was set down for a conciliation hearing
which remained unresolved and a Certificate of Outcome reflecting same was
issued on 22 September 2021. The conciliation having failed, the dispute was
referred to arbitration. At the arbitration t he Commissioner found that the
appellant's dismissal was substantively fair. The Arbitration award was
rendered on 16 October 2022.
[16] On 11 November 2022, the appellant launched review proceedings wherein he
sought to review and set aside the arbitration award. The Labour Court
dismissed the application with no order as to costs but granted leave to appeal
to this Court.
Condonation for the late filing of respondent’s answering affidavit:
[17] Before dealing with the merits it is appropriate to start with condonation. The
respondent delayed the delivery of the answering affidavit by two and half
months. The deponent to the answering affidavit made a terse explanation for
8
the delay. He stated that he was the only official with a delegation to depose
to litigation papers in Vulindlela local office . He was not involved in the
whole process and had to rely on other officials and documents in order to file
an answering affidavit. He stated that he made enquiries from the State
Attorneys' office and was advised that the issue of the delay happened
inadvertently due to unavailability of the attorney of record who had taken
maternity leave from the end of February 2023 and only returned during the
first week of July 2023.
[18] On 02 June 2023, respondent’s advocate consulted with the Senior Manager:
Legal Services, Ms Z. Maqina and the Manager: Labour Relations, Ms N.
Mkhize, which consultation he could not attend due to competing priorities.
In order to be able to depose to an answering affidavit he had to peruse all
records pertaining to the matter including volumes of the record of the
arbitration.
Condonation argument
[19] It was submitted on behalf of the appellant that only two factors were
considered by the Court a quo in determining the respondent's condonation
application, viz. prejudice and the interests of justice. It was contended that
this amounted to a piecemeal approach, which the Courts have held, is
incompatible with the exercise of a true discretion. Accordingly, so the
argument went, having failed to take all the relevant factors into account, the
Court a quo could not have correctly ascertained what the interests of justice
required in this particular instance are. It was contended further that it is
glaring from the r espondent's condonation application that the r espondent did
not give a reasonable explanation for the delay and that it failed to give a full
explanation for the entire period o f delay as required by the law. It was
9
contended that the C ourt a quo failed to exercise judicial discretion
judiciously when it granted condonation.
Argument on merits:
[20] Whilst I am dealing with the argument advanced by the appellant I deem it
expedient to deal with it on the merits as well. On the merits, it was contended
that the C ourt a quo failed to have regard to the sworn statements of the
respondent’s witnesses. Counsel for the appellant submitted that the gravamen
of the appellant’s argument was predicated on, inter alia, the assertion that
there were two mutually destructive versions placed before the Commissioner.
The contention was that there were no indep endent witnesses called by the
respondent to support its defence . Further, so it was contended, in order to
determine the a ppellant's guilt on a balance of probabilities, the
Commissioner had to consider the complete body of evidence that was placed
before her, including the sworn statements, which she failed to consider.
[21] Counsel contended that th e Commissioner was enjoined to make credibility
findings by taking into account, inter alia, the factor s identified by the Court
in the Stellenbosch Farmers' Winery judgment. He contended that the material
question which was raised by the a ppellant but was ignored by the
Commissioner and the Court a quo, is why the appellant would jump up and
assault Mr Mdima when Mr Mdima was finally acceding to h is request. Let
alone that the a ppellant let Mr Mdima pass by him only to attack him whilst
he was opening the door seconds later.
[22] The Court a quo, so the argument went, did not take into accou nt the sworn
statements of the r espondent's witnesses and the material contradictions
arising therefrom. It was contended that the Court a quo was quick to find that
10
Ms Mchunu and Mr Mdima had no reason to lie and falsely implicate the
appellant.
[23] Counsel contended that the Court a quo erred in finding that Mr Mdima spoke
with candour in that his evidence was at variance with the evidence that was
placed before the Court. F rom the transcribed r ecord it is clear, so it was
argued, that Mr Mdima denied the a ppellant's version that after Mr Mdima
told him why he was called, the a ppellant refused to listen to the clients' side
of the story or to address the complaint in front of the clients and asked Mr
Mdima to send the clients outside. The appellant contended that this evidence
is important in that his repeated request wa s what ultimately led to Mses
Mchunu and Sithole being excused by Mr Mdima.
The Commissioner’s findings:
[24] The Commissioner held that as much as there were contradictions in the
respondent's testimony as regards the area in which Mr. Mdima was allegedly
hit, the affected body part is not one of the elements of assault in our law
which defines assault as the unlawful and intentional application of force to a
person. The testimony of the respondent revealed that whilst the appellant sat
Mr. Mdima stood up to open the door for the ladies to exit. The appellant
quickly stood up and hit Mr. Mdima with his hands. Whether with one hand
or two, and whether he first grabbed him or pushed him is immaterial, the
evidence reveals that force was applied to the person of Mr. Mdima.
[25] In her evaluation of evidence the Commissioner found that the respondent’s
witnesses were amenable to concessions where they may have observed
differently but the same could not be said of the appellant who was not
prepared to make concessions. The Commissioner found that the appellant
11
kept changing his version as he went along and failed to admit facts that were
evinced by his own evidence.
[26] The Commissioner held that ‘In his statement to the police, he said he
"pushed him", but before me he insisted that he was referring to the door,
which Mr. Mdima was pushed by as he pushed it. In the disciplinary hearing
he stated that he pushed with "minimal force", and before me he explained
that that referred to the amount of force which it took to get the door open
with Mr. Mdima blocking it. With his mouth he said the action did not require
much effort or force but on the same breath labelled it 'wrestling with the
door" which was so shocking he couldn't return to Mr. Mdima's office when
asked to. His body and hand demonstrations also painted a picture of a
physically demanding exercise of pushing and pulling. Even to a blind person
with nowzes benefit of the sight of Mr. Ndaba's demonstration, or confessions
of "minimal force".’
[27] The Commissioner found that on his own version there wa s only one glaring
conclusion that could be drawn on how someone managed to leave a room
whilst or after their manager (who is not slightly build for that matter)
blocked the door with their body, it is that force was used. She found that in
fact, the appellant’s version suggested an even graver offence - one involving
the use of a potentially dangerous instrument. She concluded that his evidence
was unreliable and rejected it.
[28] The Commissioner concluded by finding that the respondent had proven on a
balance of probabilities that the appellant was guilty.
She found that the appellant committed ‘
gross insubordination in that the challenge
to Mr Mdima's authority was carried out not only by verbally disrespecting a superior, this
12
was a manager levels above him, in front of clients and the refusal to obey and challenge to
authority was carried out with the use of violence.’
The Labour Court:
[29] The Labour Court considered the submissions relating to the late filing of the
respondent’s answering affidavit and concluded that there was no serious
prejudice to the appellant. It stated that the appellant sought a deprivation of
legal costs or for the respondent to pay his costs. It held that it did not deem it
appropriate to determine the exercise of its discretion on whether a party
should or should not be granted or denied costs. Accordingly, condonation for
the late filing of the respondent’s answering affidavit was granted.
[30] On the merits the Labour Court held that the evaluation of evidence and the
reasoning of the Commissioner could not be faulted. It held that there was no
merit in the application and that the findings of the arbitrator fell within the
bands of reasonableness.
Discussion:
[31] Before discussing the merits of the matter I deem it necessary to start with the
condonation. It is by now well established that condonation of the non-
observance of the Rules of Court is not a mere formality. 1 In all cases some
acceptable explanation for any delay in seeking condonation must be given.
[32] In Department of Transport and Others v Tasima (Pty) Limited; Tasima (Pty)
Limited and Others v Road Traffic Management Corporation and Others 2 the
Constitutional Court expressed the view that the explanation that was
1 See: Meintjies v H D Combrinck (Edms) Bpk 1961 (1) SA 262 (A) at 263H -264B; Saloojee and another
NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138E -F; Turnbull-Jackson v Hibiscus
Coast Municipality and others 2014 (6) SA 592 (CC)at para 26.
2 2018 (9) BCLR 1067 (CC) at para 158.
13
proffered by the department for the delay of five years in bringing the
counterapplication of the review of its decision was not convincing.
Khampepe J described it as follows3:
‘The explanation provided by the Department was both porous and lacked the
markings of good constitutional citizenship. But this is not the end of the inquiry.
The delay cannot be “evaluated in a vacuum.” It must now be determined whether
there are sound reasons for overlooking the delay.’ [Emphasis added] Cases of V an
Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus
Curiae Road Accident Fund and Another v Mdeyide
4 and Van Wyk v Unitas Hospital
and Another (Open Democratic Advice Centre as Amicus Curiae and others are
instructive in this regard.'5
[33] It is correct, as contended by Counsel for the appellant, that when an
application for condonation for the delay is considered, a full explanation that
covers the “entire period” must be provided. 6 However, each case has to be
decided in accordance with its own circumstances. The overarching
consideration is the interests of justice.
Factors that the Court weighs in that enquiry include: the length of the delay;
the explanation for, or cause of, the delay; the prospects of success for the
party seeking condonation; the importance of the issues that the matter raises;
the prejudice to the other party or parties; and the effect of the delay on the
administration of justice. It should be noted that although the existence of
prospects of success in favour of the party seeking condonation is not
3 Ibid at para 159.
4 2011 (2) SA 26 (CC) at para 8.
5 See also: Mohlomi v Minister of Defence (CCT41/95) [1996] ZACC 20; 1996 (12) BCLR 1559; 1997 (1)
SA 124 at para 11.
6See: Van Wyk v Unitas Hospital and Another (Open Democratic Advice Centre as Amicus Curiae) 2008
(2) SA 472 (CC) at para 22; Laerskool General Hendrik Schoeman v Bastian Financial Services (Pty)
Ltd 2012 (2) SA 637 (CC) at para 15; SA Express Ltd v Bagport (Pty) Ltd 2020 (5) SA 404 (SCA) at para
34.
14
decisive, it is a weighty factor in favour of granting condonation. In Khumalo
and Another v MEC for Education, KwaZulu -Natal7, the Constitutional Court
emphasised that an important consideration in assessing whether a delay
should be overlooked is the nature of the decision. This was said to require,
“analysing the impugned decision within the legal challenge made against it
and considering the merits of that challenge.
[34] I agree that the explanation for the delay is weak and does not delve into
details. However, regard being had to the lack of prejudice to the other party,
prospects of success by the respondent, the effect of the delay on the matter ,
the right of access to court in terms of s.34 of the Constitution, fairness to
both parties and in light of the view I take , I agree that it was in the interests
of justice to condone the late filing of the respondent’s answering affidavit.
[35] On the merits, the nub of the appellant’s argument is that , despite the
contradictions in the evidence of the respondent’s witnesses the Labour Court
preferred their evidence and rejected that of the appellant.
[36] In my view, the evidence of the witnesses to a large extent complemented
each other. The evidence as a whole is not disputed in material respects. The
so-called contradictions are those nitty gritty issues relating to how the assault
was perpetrated on Mr Mdima. It has been argued that Ms Mchun u made a
statement which conflicted with her oral evidence. The fact that she might
have said the appellant hit Mr Mdima with a fist or that he pulled or pushed
him by clothes can not mean that there was no assault. The appellant himself
had made a statement to the police stating that he ‘pulled’ Mdima and his oral
72014 (5) SA 579 (CC) at para 57. See also Gqwetha v Transkei Development Corporation Ltd and others
2006 (2) SA 603 (SCA) at para 33.
15
evidence is to the same effect. The denials by the appellant were consistent
with the evidence of the respondent’s witnesses as will be demonstrated
hereunder.
[37] It is common cause that on 6 August 2019 Ms Mchunu was attended to by
the appellant. She was not satisfied with the explanation proffered for the
rejection of her application for the social grant of her grandson. It is common
cause that on the following day she came to the offices to complain. It is
common cause that the appellant was called by his superior to come and
explain. It is common cause that he refused to proffer an explanation in the
presence of the complainant. It is common cause that the refusal to explain
resulted in the ‘wrestling’ between the appellant and his superior.
[38] It is common cause that the ‘wrestling’ involved the closing of the door either
because the ladies had to leave or the appellant wanted to leave the office of
Mr Mdima. The reason for the struggle over the door is immaterial. It is
common cause that the appellant disobeyed the instructions of his superior.
He was at level 7 and Mr Mdima was at level 12. He disobeyed the instruction
to explain what happened the previous day. It is common cause that he
disobeyed the instruction to report at the office his superior after the ladies
had left that office. The statements of the ladies were more detailed than the
oral evidence as to the happenings of the incident. This is not uncommon.
[39] The appellant testified that seeing that Mr Mdima was persisting that he
should make his statement in the presence of the ladies he decided to leave.
That conduct itself amounts to insubordination. He testified that went towards
the door, and Mr Mdima ran and blocked the door with the full body and he
16
pushed the door. It was then that they ‘wrestled with the door’. He grabbed
the door handle, pushing it, trying to pull it. He pulled the door, and also
‘pulled’ Mr Mdima. His evidence is recorded as follows: ‘
As I have said, I went
towards the door, he ran and he blocked the door with the full body, and he pushed the
door. Then we wrestled with the door, grabbing the door handle, pushing it, trying to pull
it. Then I pulled the door, even him I pulled, that is how it happened. ’ [Emphasis is
mine]. From this piece of evidence, it is clear therefore that the witnesses
were correct when they said he pulled Mr Mdima by his clothes otherwise
how else could he pull him.
[40] Mr Mdima testified that he believed that he was being assaulted hence he
went to lay a charge at the police station. In my view their evidence amounted
to saying the same thing despite being observed and/or perceived differently.
It is in the nature of things that two individuals can observe the same thing but
perceive it differently. Besides , human intellect i s fallible and a room for
minor shortcomings in evidence must always be reserved when relating
events that took place three years ago.
[41] I conclude therefore that the Commissioner did not err when she found that
Mr Mdima was assaulted by the appellant. Despite his assertion that he was
not angry and had a smiling face I find that strange and inconsistent with his
conduct. The Commissioner was correct in finding that t he respondent’s
witnesses were credible when they said that he was angry. Assault by its very
nature is egregious. It is recognised in the law of delict as actio iniuriaum. It
is defined as an infringement of the right to bodily integrity (physical and
psychological)
8. In Minister of Justice v Hofmeyer,9 the court stated:
8 JC Van der Walt and JR Midgley Principles of Delicts, 3ed at 111 paras. 78
17
‘One of an individual's absolute rights of personality is his right to bodily integrity.
10The interest concerned is sometimes described as being one in corpus , but it has
several facets. It embraces not merely the right of protection against direct or indirect
physical aggression or the right against false imprisonment. It comprehends also a
mental element.’
[42] The definition of assault is the same under both civil law and criminal law. In
criminal law, assault is defined as the offence consisting of unlawfully and
intentionally applying force, directly or indirectly, to the person of another, or
inspiring a belief in another person that force is immediately to be applied to
the person threatened. [Emphasis is mine] Mr Mdima testified that he
believed that he was being assaulted. I agree with the Commissioner that this
was a gross insubordination and the dismissal was warranted.
[43] The test for review is now axiomatic. It is whether the decision reached by the
commissioner is one that a rea sonable decision maker could reach.
11 The
argument of contradictions is a far cry in this matter. The technique that was
espoused by the SCA in Stellenbosch Farmers’ Winery Ground Ltd and
Another v Martell et Cie
12 to resolve factual disputes identifies three
considerations, they being (a) credibility of the witnesses, (b) their reliability,
and (c) the ‘probabilities. The Commissioner dealt with credibility of the
witnesses at length and came to the conclusion that the evidence of the
appellant was not truthful and rejected it as being unreliable. The Labour
Court held that such decision was reasonable. I am unable to find fault in the
decision of the Labour Court in dismissing the application. Accordingly, the
appeal falls to be dismissed
9 Minister of Justice v Hofmeyer [1993] ZASCA 40; 1993 (3) SA 131 (A) at 145H-1.
10 CR Snyman Criminal Law 5ed at 455
11 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 28 ILJ 2405 (CC ) para 110.
12 2003 (1) SA 11 (SCA) at para 5
18
[44] Before concluding this judgment, there is one matter to which reference must
be made. That is the delay of almost nine months between arguments before
this Court and the delivery of two judgments including this one . This delay,
coming on top of the other delays usually experienced by litigants in resolving
their disputes in Labour matter s, is most regrettable. This is contrary to the
objects of the Labour Relations Act 66 of 1995 which makes it obligatory for
expeditious resolution of Labour disputes. In terms of the Constitution
everyone has the right to have any dispute that can be resolved by the
application of law d ecided in a fair manner. It is only fair to resolve Labour
disputes expeditiously. Section 237 of the Constitution
13 provides that “[a] ll
constitutional obligations must be performed diligently and without delay.”
Courts are endowed to dispense with justice without delay.
[45] This matter was initially assigned to another judge as the scribe. Up to the time
of writing this judgment we have not been favoured with any explanation as to
what caused this inordinate delay. My brother , Moshoana AJA , and I then
decided, in the interests of justice, to write the two judgments. The delay is
therefore not directly attributable to us. We are not necessarily running away
from the responsibility to constantly remind our colleague to write the
judgments, and we assure the parties that we were always promised that the
judgments would be forthcoming. I must therefore sincerely apologise to the
parties for this inordinate delay.
Costs:
[46] It is now trite that the general rule is that in labour disputes costs do not follow
the results. Courts, however, still have a discretion in this regard. I do not see
my way clear in deviating from the general rule.
13 Act 108 of 1996
19
Order:
[47] In the result, the following order will issue’.
1. The appeal is dismissed with no order as to costs.
__________________
B R Tokota
Acting Judge of the Labour Appeal Court
G N Moshoana et C. Collis AJJA concurs
Appearances:
For the Appellant: Mr Mhlanga
Instructed by: Mhlanga Incorporated
For the Respondent: Adv. C M Kulati
Instructed by: The State Attorney Durban