Association of Mineworkers and Construction Union (AMCU) and Another v Black Rox Security Intelligence Services ta BOSASA Security (Pty) Ltd (in Liquidation) and Others (D1780/17) [2024] ZALCD 50 (12 December 2024)

THE LABOUR COURT OF SOUTH AFRICA, DURBAN

Not Reportable

Case no: D1780/17

In the matter between:

ASSOCIATION OF MINEWORKERS AND CONSTRUCTION UNION (AMCU) First Applicant SM MAJOLA & OTHERS Second Applicant and Black ROX SECURITY INTELLIGENCE SERVICES t/a BOSASA SECURITY (PTY) LTD (IN LIQUIDATION) First Respondent AIRPORTS COMPANY OF SOUTH AFRICA (ACSA) Second Respondent RF LUCHMAN NO Third Respondent TV ODELL NO Fourth Respondent G NOKHANDA NO Fifth Respondent

Heard: 23 October 2024

Delivered: 12 December 2024 (This judgment was handed down electronically by emailing a copy to the parties. The 12 December 2024 is deemed to be the date of delivery of this judgment).

Summary: Condonation application - principles restated -prospects of success immaterial given inadequate explanation for delays- Prejudice equally key requirement of condonation – busy schedule of representative not satisfactory explanation for delays.

JUDGMENT

SHABA, AJ

Introduction

[1] This is an opposed condonation application for the late filing of the Applicants’ Statement of Claim.

Background facts relevant to condonation

[2] The facts have been summarized and comprehensively recorded in the parties’ papers. There is no need to burden this judgment with unnecessary repetition of the factual background from all parties’ perspectives.

[3] The factual matrix relevant to the condonation application will be cross-referenced to and dealt with somewhere in this judgment.

Applicable legal principles

[4] In terms of the Labour Relations Act[1] (LRA) a dispute about employees’ participation in a strike that does not comply with the provisions of Chapter IV of the LRA must be referred to the Labour Court within 90 days after the Commission for Conciliation, Mediation and Arbitration (CCMA) or its accredited

bargaining council’s commissioner/arbitrator has certified that the dispute remains unresolved.

[5] Our Superior Courts, to wit, the Constitutional Court (CC), the Supreme Court of Appeal (SCA) and the Labour Appeal Court (LAC), have over the years restated the principles, requirements and test for condonation in a plethora of authorities[2].

Length of delay

[6] According to the Applicants, their Statement of Claim was due on or before 6 May 2017 and is approximately 288 days late and they regard such delay not to be excessive and unreasonable[3]. The Applicants persist with the above in their main and supplementary heads[4].

[7] The Applicants further submit that such Statement of Claim’s, 283 days of the delay, is attributable to the arbitration proceedings

being finalised almost eleven months after the dispute was referred to conciliation[5].

[8] Notwithstanding the above, the Applicants state that their Statement of Claim was filed within the stipulated time frame (90 days) period as it could only have been filed upon receipt of the Arbitration Award relevant herein[6].

[9] The Applicants further take a somewhat about turn and submit that the only period which is applicable for consideration and adjudication

for condonation by this Court, is the period from date of receipt of the Arbitration Award, 17 October 2017 to the date of the delivery of the Statement of Claim, 21 December 2017[7].

[10] According to the First, Third, Fourth and Fifth Respondents, the Applicants’ Statement of Claim is nine months out of time[8].

[11] The aforementioned Respondents, aver that notwithstanding the fact that the Applicants’ condonation application under adjudication, was filed in December 2017, the Applicants remained “supine” in failing to ensure that same was expeditiously prosecuted

thereafter and only sought to prosecute their condonation application during circumstances under which the liquidators (Third to Fifth Respondents) were not even joined.[9] The Court is not persuaded to consider, this part of the period of delay based on the Applicants’ reply and submissions of all parties in this regard, for purposes of this Judgment.

[12] The Second Respondent denies and submits that the Applicants’ Statement of Claim was due on 6 March 2017 and that it is 288 days late. The Applicants’ Statement of Claim, according to the Second Respondent, ought to have been filed on 5 March 2017 and is 291 days late[10].

[13] The Second Respondent avers and submits that the degree of the Applicants’ lateness of not filing its Statement of Claim is

both excessive and unreasonable and that the Applicants are required to provide a detailed and satisfactory explanation for such a lengthy delay.[11]

[14] The Second Respondent submits further that the period of delay regarding the delivery of the Applicants’ Statement of Claim, is in fact more than three times the 90 days required by the LRA[12].

[15] Regard being had to all the above, there are two periods of delay that form the subject matter of these condonation proceedings. The first period is that of 5 December 2016 after the Applicants’ receipt of the conciliation certificate of outcome to the receipt of the Arbitration Award on 17 October 2017. On the Applicants’ own version, 283 days of such period is attributable to conciliation and finalization of arbitration proceedings in the CCMA.

[16] The second period of delay is that of 17 October to 21 December 2017 after the Applicants’ receipt of the Arbitration Award on 17 October 2017 to the filing of their Statement of Claim on 21 December 2017.

[17] Whichever way, based on all the above, the periods of delays aforementioned, which are excessive, can only be accepted by this Court, if it finds that there is an acceptable, satisfactory, adequate and reasonable explanation for such inordinate delays.

Explanation for the delay

First period: After receipt of the conciliation certificate of outcome (5 December 2016 to 17 October 2017)

[18] The nub of the Applicants’ explanation and reasons for the delay relating to the first period after their receipt of the CCMA conciliation outcome certificate on 5 December 2016 and their receipt of the Arbitration Award on 17 October 2017, is that such a delay is not excessive and unreasonable.

[19] The Applicants further submit that, 283 of the 288 days of delay, was as a result of the fact that the arbitration proceedings at the CCMA were only finalised on 26 September 2017, after the referral of their dismissal dispute to the CCMA on 7 November 2016. Further that they only received the Arbitration Award on 17 October 2017 and that was the only time they were able to refer their unfair dismissal dispute for filing in this Court on 21 December 2017.

[20] The Applicants’ referral form to the CCMA for conciliation is dated 7 November 2016[13]. The CCMA conciliation certificate of outcome states inter alia that the Applicants’ unfair dismissal dispute which relates to “participation in an illegal strike”, remained unresolved as at 5 December 2016 and could be referred to the Labour Court.[14]

[21] The above is further notwithstanding the fact that the LRA specifically and peremptorily, provides that a dispute about participation in a strike that does not comply with the provisions of Chapter IV of the LRA, must be referred within 90 days to the Labour Court, if it remained unresolved at conciliation[15].

[22] Despite the above established injunctions, the Applicants elected to refer their dispute to the CCMA instead of this Court, after receipt of the former’s conciliation certificate of outcome which indicated that their dispute remained unresolved as at 5 December 2016.

[23] The Applicants stuck to the referral of their dispute after the conciliation certificate aforementioned, despite having been freely advised by the Respondents’ erstwhile legal representatives that the CCMA was not the appropriate forum to determine their dispute after the conciliation certificate of outcome of 5 December 2016 that indicated that their dispute remained unresolved and could be referred to the Labour Court.

[24] The Applicants concede that the conciliation certificate of outcome in respect of their dispute referred to the CCMA, reflects that the matter is one that related to dismissal for participation, in an illegal strike. Further, that the issue of the CCMA not being the appropriate forum was raised by the First Respondent’s erstwhile legal

representatives at the arbitration proceedings[16].

[25] Despite having filed their Statement of Claim on 21 December 2017 at this Court, and without having received the relevant Arbitration Award, the Applicants, persist with the justification of having had to refer their dispute to the CCMA regardless[17].

[26] Briefly put, the gravamen of the Applicants’ explanation for the delay regarding this first period of delay, is that they could not have delivered their Statement of Claim within 90 days after receipt of the conciliation certificate of outcome, and only did so, after 288 days, as they had to await the CCMA’s Arbitration Award which they only received on 17 October 2017. Based on such fact, the Applicants persist with their contention that their Statement of Claim was filed within the required 90 days after their receipt of the Arbitration Award.

[27] The thrust of the First, Third, Fourth and Fifth Respondents’ opposition to the Applicants’ explanation of the delay for this first period, on the main, is that the Applicants referred their dispute to the CCMA for arbitration instead of this Court, in flagrant disregard of the content of the conciliation certificate of outcome, and the mandatory LRA provisions which have been in existence for over 30 years, is not a satisfactory and reasonable explanation for the delay.

[28] In amplifying the above, the aforementioned Respondents, submit that an error in law and strategy that was made by the Applicants and their legal representatives in referring their dispute to the CCMA for arbitration after the conciliation certificate of outcome, instead of this Court, is not a valid excuse in law for purposes of explaining away a delay[18].

[29] The aforementioned Respondents further submit that despite having been notified by the First Respondent’s erstwhile legal representatives during arbitration proceedings relevant herein that their referral to arbitration was not appropriate, they proceeded to have the matter prosecuted to its finality in the CCMA, regardless.

[30] The cardinal of the Second Respondent’s opposition to the Applicants’ explanation for the delay for this first period, is that the fact that they referred their dispute to arbitration at the CCMA, is not satisfactory and reasonable as they knew that their dispute concerned participation in an illegal or unprotected strike over which the CCMA did not have jurisdiction, after conciliation as such jurisdiction resides in this Court[19].

[31] In amplifying the fact that the Applicants knew that the CCMA did not have jurisdiction, as aforementioned, the Second Respondent submits that the Applicants were charged with engaging in unprotected work stoppage, and dismissed for such misconduct as was indicated in the CCMA’s conciliation certificate of outcome[20].

[32] The Second Respondent further submits that the Applicants’ explanation of the delay for this period, is not satisfactory, to the extent that the First Applicant had to go through its internal process prior to making a decision on whether to file a Statement of Claim, as it only took its own convenience into account and failed to have regard to expeditious determination of labour disputes in the interest of finality to all parties[21].

[33] The Applicants’ reliance on General Industries Workers Union of South Africa (GIWUSA) obo Heyneke v Klein Karoo Koöperasie Bpk[22] from the Bar, to justify their referral of their unfair dismissal dispute, to a wrong forum, cannot take their case any further as the facts of that case are distinguishable. In that case the certificate of outcome did not indicate to which forum the matter should be referred as the conciliating commissioner did not tick or mark a box indicating that the matter must be referred to the Labour Court. The case was about dismissal for operational requirements and the application for condonation, like in this matter, was excessively late. This case as a matter of fact, supports the Respondents’ case that the filing of the Applicants’ statement of claim is nine months out of time and that such period is excessive and unreasonable. Further that there shouldn’t be further delays after referring a matter to a wrong forum as well as that condonation, after referral to a wrong forum, must be attended to immediately.

[34] Regard being had to all the above, I have no hesitation to arrive at the conclusion that the Applicants’ explanation for this period of delay between 5 December 2016 and 17 October 2017, before filing its statement of claim at this Court, is not satisfactory, adequate, acceptable and reasonable.

[35] The Court is persuaded inter alia that an error in law that was made by the Applicants to refer their dispute to the CCMA, instead of this Court, is not a valid excuse in law to have delayed in delivering their Statement of Claim at this Court.

[36] This principle was enunciated in Paper Printing Wood and Allied Workers Union (PPWAWU) and Others v AF Dreyer and Co (Pty) Ltd,[23] where the court held that:

‘On the one hand it must be said in favour of the dismissed employees that they entrusted their case to their trade union and were entitled to assume that the union would act with their best interests in mind. There is no suggestion that they knew of the time limits laid down in the Act nor that they were aware, or must have become aware, of the delay in prosecuting their claim. On the other hand, as the courts have stressed many times, there is a limit to which a litigant can rely on the negligence of his representative in failing to comply timeously with time limits.’

[37] This Court is further persuaded that the Applicants knew or at least ought to have known, especially given the conciliation referral certificate of outcome and the LRA provisions, on the referral of the nature of their dispute after conciliation failed that, their dispute had to be referred to this Court and not the CCMA. Further that the Applicants, by referring their unfair dismissal dispute relating to participation in an unprotected strike following the non-resolution of such dispute at conciliation, had wanton disregard for the requirement of expeditious and prompt resolution of labour disputes in terms of the LRA.

[38] In Food and Allied Workers Union obo Gaoshubelwe v Pieman's Pantry (Pty) Ltd,[24] and in emphasizing the importance of expeditious resolution of disputes, the Court stated the following:

‘[187] Our courts have, on occasion, pronounced on the importance of labour disputes to be conducted with expedition. For example, in National Research Foundation the Labour Court held:

‘It is now trite that there exists a particular requirement of expedition where it comes to the prosecution of employment law disputes…’

[39] In Toyota SA Motors (Pty) Ltd v CCMA and others[25] the Constitutional Court emphasised that one of the fundamental purposes of the LRA, was to establish a system for the simple, quick, cheap and informal adjudication of labour disputes. When it assesses the reasonableness of a delay, the Court must not lose sight of this purpose.

[40] The fact that the further Applicants were represented by the First Applicant, which is a trade union, at the arbitration proceedings a quo, is not satisfactory and acceptable explanation for the delay relating to this first period, as the further Applicants were represented at arbitration proceedings, by the deponent of the founding affidavit in these condonation proceedings, who seems to have a wide experience in labour law parlance. Besides, the First Applicant, the further Applicants and such deponent, were advised that their referral of the unfair dismissal dispute after conciliation to the CCMA, was in a wrong forum. This much was done by the First Respondent’s erstwhile legal representative at the arbitration proceedings.

[41] Having already found that the period of delay by the Applicants in not having delivered their Statement of Claim within 90 days after receipt of the conciliation certificate of outcome, is excessive and that, there is no satisfactory and acceptable explanation for such delay, I have no hesitation in refusing condonation on this ground alone, for all the reasons set out above.

[42] Even if, I may be wrong, in refusing condonation, on this ground alone, the Applicants still have to cross the hurdle of advancing a satisfactory, acceptable, adequate and reasonable explanation for delays in respect of the second period of delay.

Second period of delay: After receipt of the Arbitration Award. (17 October to 21 December 2017)

[43] The Applicants received the Arbitration Award on 17 October 2017, which ousted the CCMA’s jurisdiction to arbitrate their unfair dismissal dispute.

[44] Despite having referred and prosecuted their unfair dismissal dispute from November 2016 to 26 September 2017, resulting in the Arbitration Award of 17 October 2017, in a wrong forum, the Applicants only filed their Statement of Claim in this Court on 21 December 2017.

[45] The Applicants explanation for the period of delay, of about ten weeks between 17 October and 21 December 2017, before delivering their Statement of Claim, is spelled out in their founding affidavit[26] which will be dealt with briefly hereafter.

[46] It cannot be an adequate and satisfactory explanation for the delay that the Applicants delayed because the First Applicant deals with numerous cases in the CCMA and Bargaining Councils throughout the country and in the Labour Court.

[47] It is not an adequate and satisfactory explanation for the delay, that the Statement of Claim could not be speedily attended to because the First Respondent’s organiser elected to attend to other matters instead.

[48] There is nothing attached to the Applicants’ papers that corroborates the First Applicant’s organiser’s involvement in cases and other matters which made him unable to assist with the Statement of Claim, let alone specifics on the nature and extent of such involvement.

[49] The fact that a litigant or its representative elects to attend cases and matters, whilst having this matter to be attended to, cannot be a satisfactory explanation for the delay. This Court has disapproved of busy schedules of representatives as a valid explanation for the delay in complying with the rules of this Court.

[50] In Petro Chem Technical Service (Pty) Ltd v Motor Industry Bargaining Council Dispute Resolution Centre and Others[27] the Court made reference to the following authorities and said:

‘[56] The Court in Allround Tooling v NUMSA and another held that a practitioner's busy schedule is not an acceptable explanation for delay in observing time limits. This approach was followed in Minister of Social Development v Veldhuizen. For this reason, the fact that the Applicant's representatives were busy with the other applications brought forward, is insufficient.’ [footnote omitted].

[51] There is no shred of explanation as to, why it took the First Respondent’s organiser and deponent to the affidavit, ten days after receiving the award on 17 October 2017 and returning to office on 18 October 2017, only to refer the “matter”

to Ms Nomkhosi Khumalo (Khumalo), a Paralegal Officer, in the First Respondent’s Legal Department.

[52] There is no satisfactory explanation of what Ms Khumalo aforementioned, did with the “matter” for almost a month, that was placed in her possession on 28 October 2017 until the “dedicated consultation” following the “initial instructions” on Monday 20 November 2017.

[53] There is no explanation for the delay following the dedicated consultation and initial instruction aforementioned on 20 November 2017, which was a Monday and 24 November 2017, which was a Friday, when the Applicant’s Attorneys communicated advice to Ms Khumalo and Mr Daniel Marais (Marais).

[54] Having received advice of the Applicant’s Attorneys on 24 November 2017 and having given such Attorneys instructions as their Attorneys of record, to refer the matter to this Court, there is no satisfactory explanation as to why consultation with such Attorneys only took place on 11, 18 and 19 December 2017 save for the Applicant’s sweeping averment that it was due to the “complexity of arranging diaries”. There is nothing attached to any of the Applicant’s papers that corroborates such complexity of diaries.

[55] In South African Transport and Allied Workers Union v Algoa Bus Company (Pty) Ltd and others[28] it was held that:

‘[12] The third respondent had an obligation to explain the full extent of the delay. It did not. It omitted essential dates and left portions of the delay unaccounted for…The absence of reasonable explanation for inordinate delay constitutes sufficient grounds for the refusal of a condonation application.’

[56] The fact that the First Applicant, has strict reporting and operational structures in handling its members disputes and protecting their interest, including the fact that Ms Khumalo and Mr Marais are in Witbank and that the First Respondent’s organiser is at the Durban branch, cannot be a satisfactory explanation for the delay as on the Applicants’ version, there are e-mails and phones, which are necessary for communication and could or ought to have been utilised to avoid delays.

[57] There were 52 First Respondent’s erstwhile employees who are further Applicants in this matter and members of the First Applicant, whose interest stood to be equally protected through the First Applicant’s organisational structure by avoiding inordinate delays in filing the Statement of Claim timeously in this matter.

[58] The Applicants’ Attorney being in Johannesburg only on 15 December 2017 without linking such one-day phenomenon, with any specifics relating to delays in this matter, is an unsatisfactory explanation for the delay, which cannot take the Applicant’s case further[29].

[59] This Court is not persuaded that there was anything complex to be researched after the Applicants’ receipt of the Arbitration

Award on 17 October 2017, which is self-explanatory given the plain wording of the LRA[30], in this regard which has been in existence for 30 years and the conciliation referral certificate of outcome which stated as far back as 5 December 2016, that if the Applicants’ dispute remains unresolved, it could be referred to this Court for adjudication.

[60] Given the unsatisfactory explanations for the inordinate delays in not having filed their Statement of Claim swiftly after receiving the Arbitration Award on 17 October 2017, condonation for the late filing of such statement, has to be refused on this further ground alone.

Prospects of success

[61] In Grootboom v National Prosecuting Authority and another[31], it was held amongst others that:

‘[51] The interests of justice must be determined with reference to all relevant factors. However, some of the factors may justifiably be left out of consideration in certain circumstances. For example, where the delay is unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success. …’ [emphasis added].

[62] In SATAWU[32] supra the Court held that:

‘[13] …With regard to prospects of success, I found the following dictum apposite:

“There are overwhelming precedents in this Court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of Court condonation may be refused without considering prospects of success.’

[63] In MEWUSA obo Mahatola and Others v F and J Electrical[33] (MEWUSA) it was also inter alia held that:

‘[13] It is also well established that without a reasonable and acceptable explanation for delay, a court may, in the exercise of its discretion, refuse condonation irrespective of the prospects of success.’

[64] Regard being had to the above, it is now axiomatic that where there is no satisfactory explanation for delays and non-compliance with the Rules of this Court, it may exercise its discretion to refuse condonation by not considering prospects of success.

[65] This Court exercises its discretion accordingly in the above connection and will not consider the Applicants’ prospects of success based on all the above.

[66] Even if I may be wrong in exercising this Court’s discretion not to consider the Applicant’s prospects of success in the main referral, the Applicant ought to lay out some basis for its prospects of success in its founding papers, for purposes of this condonation application.

[67] It is trite that the Applicants do not have to fully argue and prove prospects of success with their claim in the main referral, against the Respondents for purposes of this condonation application. However, the Applicants are at the bare minimum, expected to lay out facts that are sufficient to show their prospects of success.

[68] In Public Servants Association obo Manamela v General Public Services Sectoral Bargaining Council and Others[34], it was held that it is incumbent upon the applicant to go further than making a bold statement and that:

‘In regard to prospects of success, it is not necessary for an applicant to prove that he or she will succeed when the merits of the matter considered; it is necessary only to provide a basis to establish that the applicant has a good chance of succeeding when the matter is heard. This requires an elucidation of the prospects of success beyond a broad and sweeping statement to the effect that the applicant has good prospects – the averment must be substantiated."…. [own emphasis].

[69] The Applicants merely attended to an unsubstantiated conclusion that their prospects of success in this matter are good in that there is sufficient evidence to show on a balance of probabilities that the dismissal of the further Applicants was procedurally and substantively unfair, leaving it up to this Court to figure out what their prospects of success are, based on the Statement of Claim[35].

[70] In Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited and others[36] , the SCA held that it is advisable in condonation applications, to set forth briefly and succinctly such essential information as may enable the court to assess an applicant's prospects of success.

[71] The Applicants are in any event, pursuing an unfair dismissal claim in this Court against the First Respondent which has since been liquidated and may not reinstate them, let alone pay them compensation, as potential creditors. This may well be a practical impossibility.

[72] The Applicants are further seeking reinstatement by the Second Respondent under circumstances where there is no prior referral to the CCMA or conciliation of any unfair dismissal dispute against such Respondent.

[73] The Second Respondent was not cited in the CCMA conciliation and arbitration proceedings nor even participated in any such proceedings.

[74] If the Second Respondent succeeds in the main referral or any relevant application to prove that the First Respondent was an independent contractor that provided security to it, on the basis of the contract so far disclosed, in the main referral proceedings and that, it is not the Applicant’s employer, then and in that event, the Applicant’s prospects of success leave much to be desired.

Prejudice

[75] Prejudice is one of the key and trite requirements of a condonation application.

[76] The Applicants papers are silent about prejudice as a quintessential requirement of their condonation application. Condonation stands to be refused based on this ground alone.

[77] Balance of convenience is not a requirement for condonation and the Applicant’s bold and unsubstantiated conclusion[37], in this regard, cannot take its case further. There is dichotomy between balance of convenience for purposes of determining and/or

adjudicating an interim relief pending finalisation of the main application or action and prejudice for purposes of determining

and/or adjudicating a condonation application.

[78] The Applicants attempt to deal with the facts relating to prejudice in its main and supplementary heads that have not been pleaded, is not permissible.

[79] In Selakane and Another v Legacy Adventures and Others[38] it was held that:

‘[12] The essence of the passage above is that a party cannot canvass one approach in the papers and then adopt another in his heads of argument and/or during argument without having amended his papers to be in line with his argument. The rationale behind is manifest – the other party must come to court knowing what case he is expected to meet. Lack of adherence to that principle will inexorably result in injustice and unfairness on the other unsuspecting party. I intend to approach the determination of this matter with guidance from this salutary principle.’ [emphasis added].

[80] The Court is persuaded by the Respondents’ pleadings[39] and submissions that they stand to suffer more prejudice than the Applicants if condonation was to be granted under the circumstances.

[81] In MEWUSA[40] it was held that:

‘[20] I appreciate that if the applicants were ultimately successful if the matter was allowed to proceed they are being

prejudiced by the proceedings been curtailed, whereas the respondent faces the prospect of defending a dismissal seven years after the event. It is an inherent risk of failing to obtain condonation for the late referral of disputes that applicants will not have their dispute ventilated before an independent forum. That is always an important consideration. However, while the LRA provides remedies for unfair dismissal those remedies must be invoked timeously. Once a party is late it should make every effort to ensure that the lateness is not prolonged. It cannot be expected that respondents must patiently wait for an indefinite period until applicants take all the necessary steps to finalise their referrals. As much as the applicants are prejudiced by forfeiting the independent adjudication of their dispute, respondents are prejudiced by the lack of timeous finality.’ [emphasis added].

[82] The Court has no hesitation in arriving at the conclusion that the Respondents stand more to be prejudiced than the Applicants’ after eight years, with no finality of this matter because of inordinate delays occasioned by the Applicants thus far.

Interest of justice and importance of the case

[83] In Steenkamp and others v Edcon Ltd,[41] the Constitutional Court reaffirmed that granting condonation must be in the interest of justice and all factors should, therefore, be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation.

[84] The Applicants conceded inter alia that the CCMA conciliation certificate of outcome of their unfair dismissal dispute reflects that their dispute is about participation in an illegal strike and that such certificate also stated that if their dispute remained unresolved, it could be referred to this Court as well as that this issue, was raised by the First Respondent’s legal representatives at arbitration proceedings.

[85] Taking into account the cause and extent of excessive delays, the inadequate and unacceptable explanation related thereto, the Applicant’s prospects of success, which are not that material in these proceedings, given inadequate and unacceptable explanation, for delays as well as the comparative prejudice of the respective parties, the Court is not persuaded that it will be in the interest of justice, to grant condonation under the circumstances.

[86] There is no doubt that this matter is of importance to both parties, including a determination of a distinction between an independent contractor and a temporary employment services. The Second Respondent, as a matter of common cause, was never cited in the referral of the further Applicant’s unfair dismissal dispute for conciliation and neither did it participate in such process and arbitration proceedings. This is exacerbated by the further common cause fact that the First Respondent has since been liquidated and that such phenomenon has an acute bearing on the relief sought by the Applicants against the Third, Fourth and Fifth Respondents. Granting condonation under these circumstances will not be just, equitable and in the interest of justice.

Conclusion

[87] In the premises, the Court is not persuaded that the Applicants have shown good cause that it will be in the interest of justice to grant condonation for the filing of the Statement of Claim.

Costs

[88] In terms of the provisions of section 162(1) of the LRA, and rule 56 which regulates orders for costs in this Court, I have a wide

discretion when it comes to the issue of costs, having regard to the requirements of the law and fairness after taking into account all of the relevant facts and circumstances.

[89] In exercising this judicial discretion, the Constitutional Court in Long v South African Breweries (Pty) Ltd and Others[42] reaffirmed the principle set in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[43] with regard to costs in employment disputes and stated that ‘when making an adverse costs order in a labour matter, a presiding officer is required to consider the principle of fairness and have due regard to the conduct of the parties.’

[90] Taking into account all of the relevant facts and circumstances and having regard to the requirements of the law and fairness, I do not consider it appropriate to make a costs order in this matter and I exercise my discretion as to costs accordingly.

[91] In the results the following order is made:

Order

1. The Applicants’ condonation application is dismissed.

2. There is no order as to costs.

S M Shaba

Acting Judge of the Labour Court of South Africa.

Appearances:

For the Applicants: Instructed by: Mr M Futcher Futcher & Poppesqou Attorneys For the First, Third, Fourth and Fifth Respondents: Instructed by: Adv P H Kirstein with Adv A A R Marques Olivier Steyn Inc For the Second Respondent: Instructed by: Adv Lynette Naidoo Norton Rose Fulbright Attorneys

[1] No. 66 of 1995, as amended. See specifically ss 191(5)(b)(iii), 191(11)(a) and 191(11)(b).

[2] Steenkamp and others v Edcon Ltd (2019) 40 ILJ 1731 (CC) at paras 36 and 37; Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC); Khumalo and Another and member of the Executive Council KwaZulu-Natal [2014] 3 BCLR 333 (CC) at 48 to 52; Mhlontlo Local Municipality and Others v Ngcangula and Another [2024] 3 BLLR 239 (SCA) at para 23. See also: The National Prosecuting Authority v Public Servants Association obo Meintjies and Others and a related matter [2022] 1 All SA 353 (SCA) at para 61, which noted: ‘Thus, the notice of motion and founding affidavit has to be analysed to ascertain whether the enforcement of employment contract terms was relied upon. In performing this exercise, substance must prevail over form and proper regard must be had to context.’; Colett v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 1948 (LAC) at para 38; Department of Correctional Services v Solidarity obo Taljaard [2024] 9 BLLR 906 LAC at 20.

[3] Paras 24 to 25 of the Applicants’ Founding Affidavit.

[4] Paras 15.2 of the Applicants’ main heads and 15 of the Applicants’ Supplementary heads.

[5] Para 15.3 of the Applicants’ main heads.

[6] Paras 11 of the Applicants’ Supplementary heads.

[7] Para 4 of the Applicants’ Supplementary heads.

[8] Para 5.8 of the First, Third, Fourth and Fifth Respondents’ answer

[9] Para 5.9 of the First, Third, Fourth and Fifth Respondents’ answer.

[10] Paras 21.1 and 21.2 of the Second Respondent’s Opposing affidavit and para 8 of its heads.

[11] Para 22.1 of the Second Respondent’s answer and para 10 of its heads.

[12] Para 9 of the Second Respondent’s heads.

[13] Applicants’ CCMA referral form.

[14] Conciliation Certificate of outcome Annexure FA3 to the Applicants’ founding affidavit.

[15] Id fn 1 supra.

[16] Para 27 of the Applicants’ founding affidavit.

[17] Paras 17.1 to 18.2 of the Applicants’ heads and 13 of their Supplementary heads.

[18] Respondents’ submissions at para 2.7 and Steenkamp Id fn 3 supra at 75.

[19] Para 23.2 to 23.3 of the Second Respondent’s opposing affidavit.

[20] Paras 23.2 .1 to 23.2.3 of the Second Respondent’s opposing affidavit.

[21] Para 13 of the Second Respondent’s heads.

[22] [2005] 8 BLLR 791 (LC).

[23] [1997] 9 BLLR 1141 (LAC) at 1143.

[24] (2018) 39 ILJ 1213 (CC) at para 187.

[25] [2016] 37 ILJ 313 (CC).

[26] Paras 35 to 53 of the Applicants’ founding affidavit.

[27] (2020) 41 ILJ 1216 (LC) at para 56.

[28] [2016] 7 BLLR 711 (LC) at para 12.

[29] Fn 24 supra.

[30] Sections 191(5)(b)(iii), 191(11)(a) and 191(11)(b) of the LRA.

[31] 2014 (2) SA 68 (CC) at para 51. See also: Steenkamp (Id fn 3) at paras 36 and 37; Colett (Id fn 3) at para 38.

[32] Id fn 30 at para 13.

[33] (JS1002/19) [2016] ZALCJHB 167 (26 April 2016) at para 13.

[34] (JR 1354/2018) [2020] ZALCJHB 155 (25 August 2020) at para 5.See also: Molosioa v Eskom Holdings Limited (Komati Power Station) [2021] 4 BLLR 368 (LAC) at para 14.

[35] Para 54 of the Applicant’s founding affidavit.

[36] 2017 (6) SA 90 (SCA) at para 34.

[37] Para 61 of the Applicants’ founding affidavit.

[38] (16841/2015) [2018] ZAGPJHC 575 (19 October 2018) at para 12.

[39] Para 7.1 to 7.10 of the First, Third, Fourth and Fifth Respondents’ founding affidavit and paras 3.1 to 3.8 of their heads.

[40] (Id fn 35) at para 20.

[41] (2019) 40 ILJ 1731 (CC) at para 37.

[42] (2019) 40 ILJ 965 (CC) at para 30.

[43] 2018) 39 ILJ 523 (CC) at para 25.