Coetzee v Kim Kgolo Primary School and Others (C406/2021) [2024] ZALCCT 43 (18 September 2024)

THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN

Not Reportable

Case no: C406/2021

In the matter between:

DISEBO EVELINE COETZEE Applicant and KIM KGOLO PRIMARY SCHOOL GOVERNING BODY First Respondent MS. KELEBOGILE MOEA Second Respondent THE MEMBER OF THE EXECUTIVE COUNCIL FOR THE DEPARTMENT OF EDUCATION Third Respondent MPHO MOTSHELESI Fourth Respondent KELETSANG MOJAKI Fifth Respondent GORDAN DIKGETSI Sixth Respondent EDWARD TEBOGO MOGALE Seventh Respondent MTONXA LORAINE Eighth Respondent

Heard: 21 August 2024

Delivered: 18 September 2024

This judgment was handed down electronically by consent of the parties’ representatives by circulation to them via email. The date for hand-down is deemed to be 18 September 2024.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant was employed as a Grade R teacher at the First Respondent, the Kim Kgolo Primary School (the school) since 2002. She was appointed on a fixed-term contract for 12 months and since 2018, her contract has been renewed every year for a period of 12 months.

[2] It is undisputed that in accordance with the minimum requirements for teacher qualifications, a Bachelor of Education, Foundation Phase (B.Ed) is required to teach Grade R pupils. In March 2019, an action plan towards the ‘realization of schooling 2030’ was published and came into operation. The purpose was to improve the quality of early childhood programs and the strategy required that qualified practitioners be appointed to teach in Grade R.

[3] In response to the action plan, the Northern Cape Department of Education (Department) assisted identified practitioners in obtaining a B.Ed degree or diploma in Grade R teaching through the University of North West. The Applicant was one of the identified practitioners to attend the diploma course as she only had a grade 10 and ECD NQF level 4 and 5 qualifications. The Applicant was awarded a bursary in 2018 to complete a diploma through the University of North West. The course through the University of North West had to be completed by December 2021. Each year, the participants were required to accumulate a number of credits towards the completion of 380 credits in the Diploma course.

[4] In May 2020, it was communicated that the aforesaid identified practitioners who studied towards the B.Ed degree or diploma, who had obtained less than 100/268 credits in 2020, would no longer be funded and they would have to pay for themselves going forward. The Applicant had only obtained 36/268 credits since she started with the diploma course and on 7 September 2020, a letter was addressed to her to inform her that the funding for her studies at the University of North West was terminated because she failed to comply with her commitments.

[5] On 3 September 2020, the Department issued Circular 35/2020 wherein it was communicated what the minimum qualifications to teach Grade R were and that as in interim, the minimum requirements were relaxed but from 2021 going forward, certain practitioners would not be appointed, inter alia those with only matric or students who were awarded a bursary in 2018 and who have less than 100 credits. The Applicant fell within the latter category.

[6] The Respondents’ version is that the Applicant was awarded a bursary in 2018, which enabled her to register for a diploma in Grade R teaching at the North West University, but she only attended 19 out of 39 sessions since 2018 and her assignments had not been submitted. She did not meet the minimum criteria of at least 100 credits.

[7] The contract position of Grade R teacher at the school was advertised, with the closing date being 20 October 2020. The minimum requirements were a B.Ed degree, Grade R diploma NPDE with 5 years experience or ECD NQF level 4 and 5 (140 credits) with 5 years experience.

[8] The Applicant submitted an application for the contract position for 2021. The shortlisting was done on 10 November 2020 but the Applicant was disqualified as the panel found that she did not possess the required number of credits, as per the advertisement. Four candidates were shortlisted and they were interviewed on 17 November 2020. The interview panel recommended the appointment of three candidates who met all the requirements.

[9] On 9 December 2020, the Applicant lodged a dispute with the Department wherein she complained that she applied for the position of Grade R teacher but was not invited to an interview.

[10] On 31 December 2020, the Applicant’s fixed-term contract came to an end. In her replying affidavit, the Applicant denied that her contract came to an end as “there was a legitimate expectation to re-new it”.

[11] On 27 January 2021, a letter (which was erroneously dated 27 February 2021) was addressed to the Applicant, informing her of the outcome of the dispute she had lodged in December 2020. The letter bears a date stamp of 27 January 2021, which, on all probabilities, shows that the letter was indeed issued on 27 January 2021. The Applicant was informed that she did not meet the requirements for the position and that the Department was proceeding with the process. She was advised to lodge a further dispute with the district office within five days.

[12] In her replying affidavit, the Applicant disputed that she received the letter in January 2021. In her founding affidavit, the Applicant admitted that she collected the letter from the school on 27 February 2021 and that upon receiving the letter, she realised that it was about the failure to appoint her. Based on the Applicant’s own version, this Court accepts that she was aware on 27 February 2021 that she was not appointed as a Grade R teacher for 2021. In all probability, the Applicant knew earlier than 27 February 2021, but for purposes of this judgment, this is the date this Court will accept to the Applicant’s benefit.

[13] Instead of approaching the district office, as the Applicant was advised to do, the school received a letter from the EFF Labour Desk on 8 March 2021, seeking to discuss inter alia the non-appointment of the Applicant as a Grade R teacher. The district director responded to the EFF on 12 March 2021, indicating that the EFF was not one of the Department’s social partners and that it could not represent any employee. However, it was agreed to meet with the EFF as a matter of courtesy.

[14] The meeting with the EFF took place on 16 March 2021 and it is undisputed that the Applicant was advised that if she was aggrieved by her non-appointment, she should take the Department to the CCMA, where it would defend the decision not to appoint her.

[15] On 4 June 2021, the Applicant referred an unfair labour practice dispute to the CCMA, with an application for condonation. The condonation for the late referral was not granted and the Applicant did not pursue her case at the CCMA any further.

[16] On 17 August 2021, the Applicant filed an application to review and set aside a decision taken by the First and the Second Respondent “in failing and avoiding to appoint the Applicant in her incumbent position of Grade R teacher for the year 2021 on the basis that it is gross (sic) irregular, unlawful and unconstitutional”.

[17] The First, Second and Third Respondents (Respondents) opposed the application for review. In their answering affidavit, the Respondents raised a number of points in limine. Relevant for purposes of this judgment is the point raised that the review application was filed late and that the Applicant had not filed an application for condonation.

[18] In her replying affidavit, the Applicant submitted that the point in limine should be dismissed as there was no need to file an application for condonation. This is so because the Applicant only “became aware fully and completely about the facts relating to the decision not to shortlist and appoint” her on 23 July 2021 and as such, her review application was filed within the prescribed six-week period.

[19] Notwithstanding the stance adopted by the Applicant in her replying affidavit, she filed an application for condonation in April 2024. It is evident from the application so filed that the Applicant was not convinced that she needed to apply for condonation. She stated that the purpose of the application was to seek an order “condoning the late filing of the review application should it be found that I ought to have file (sic) such a condonation even though in my honest view I am not necessarily late”.

[20] The first issue to be decided is whether the Applicant should have applied for condonation.

Is a condonation application necessary?

[21] It is incumbent on an applicant referring a matter to this Court for adjudication, to identify the provision in the Labour Relations

Act[1] (LRA), or any other law, which confers jurisdiction on this Court to entertain the claim. As was confirmed in Shezi v SAPS and Others[2]:

‘What this requires is that a party referring a dispute to this court for adjudication must necessarily point to a provision of the LRA or some other law that confers jurisdiction on this court to adjudicate the dispute. It is thus incumbent on an applicant referring a matter to this court for adjudication to identify the provision in the LRA, or any other law, which confers jurisdiction on this court to entertain the claim. Jurisdiction, of course, is to be determined strictly on the basis of the applicant’s pleadings; the merits of the claim are not material at this point. What is required is a determination of the legal basis for the claim, and then an assessment of whether the court has jurisdiction over it…’

[22] It is evident from the Applicant’s founding affidavit that she seeks the review and setting aside of a decision not to appoint her as a Grade R teacher for 2021 and that the application is brought in terms of the provisions of section 158(1)(h) of the LRA.

[23] All review applications are subject to time limits. Section 145 requires that any application to review and set aside an arbitration award emanating from proceedings in the CCMA must be delivered within six weeks from the date on which the impugned award was served on the applicant. Section 145 applies to any arbitration conducted under the auspices of a bargaining council.

[24] While section 158(1)(h) does not specify a time limit within which a review application must be brought, the Labour Appeal Court (LAC) has held that the application must be brought within a reasonable time, and has equated this with the six-week limit established by section 145. Any review application brought under section 158 (1)(h), filed later than six weeks after the impugned decision was served on the applicant, should be accompanied by an application for condonation.

[25] In casu, there is much debate as to when the decision, which is subject to review, was communicated to the Applicant. In my view, the Applicant knew, alternatively ought to know that she was not shortlisted, interviewed and appointed by early December 2020, when she lodged a dispute with the Department wherein she complained that she applied for the position of Grade R teacher but was not invited to an interview. If she was not sure by then, she ought to know that she was not appointed when she did not receive another fixed-term contract for 2021, after her contract expired at the end of December 2020 and when she did not go back to work when the school term started in 2021.

[26] In her founding affidavit, the Applicant admitted that she collected the letter about the failure to appoint her from the school on 27 February 2021 and I accept that on her own version, she was formally informed and aware on 27 February 2021 that she was not appointed as Grade R teacher because the Respondent was of the view that she did not meet the requirements.

[27] The Applicant had to file her review application by 9 April 2021 to fall within the prescribed six-week period. The review application was only filed on 17 August 2021, clearly outside the prescribed period and the Applicant had to apply for condonation for the late filing of her review application.

[28] The Applicant had to apply for condonation and she indeed did so in April 2024. The next issue to be decided is whether the Applicant should be granted condonation for the late filing of her review application.

The principles applicable to the grant of condonation

[29] The relevant legal principles to be applied in an application for condonation are well established. This Court is required to exercise a discretion, having regard to the extent of the delay, the explanation for the delay, the prospects of success and the relative prejudice to the parties that would be occasioned by the application being granted or refused. The interest of justice will ordinarily reflect regard to all these factors.

[30] In Melane v Santam Insurance Co Ltd[3], it was held that:

‘…Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach

incompatible with a true discretion, save of course that if there are no prospects of success there would be no point in granting

condonation… What is needed is an objective conspectus of all the facts.’

[31] In A Hardrodt (SA) (Pty) Ltd v Behardien and others[4] (Behardien), the LAC restated the guidelines laid down in Queenstown Fuel Distributors CC v Labuschagne NO and others[5] as inter alia, that there must be good cause for condonation in the sense that the reasons tendered for the delay have to be convincing. In other words, the excuse for non-compliance with the six-week period must be compelling. The onus is on the applicant to satisfy the court that condonation should be granted.

[32] In this Court, however, the principles have long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial.

[33] The general principles applicable to deciding applications for condonation apply even more stringently when it comes to review applications. In National Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of Zimco Group) and others[6] (Thilivali), the Court held that:

‘What is clear from the judgment in Hardrodt is that general principles applicable to condonation applications are even more stringently applied where it comes to a condonation

application for the late filing of a review application. In review condonation applications, the explanation that needs to be submitted

must be compelling and the prospects of success need to be strong. Where it comes to the issue of prejudice, the applicant in fact has to show that a miscarriage of justice will occur if the applicant’s case is not heard.’

[34] The court in Thilivali added the following consideration when evaluating condonation applications in reviews:

‘It must also always be considered that the applicant for condonation actually bears the onus to prove good cause for condonation to be granted in terms of the principles set out above. There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental principle, confirmed that all employment law disputes must be expeditiously

dealt with and any determination of the issue of good cause must always be conducted against the back drop of this fundamental

principle in employment law.’[7]

[35] The courts have held and emphasised that in review applications, an applicant must necessarily act with the degree of diligence required by the Rules of this Court[8] (Rules) and the Practice Manual[9], thus giving effect to the statutory imperative of expeditious dispute resolution.

[36] In Toyota SA Motors (Pty) Ltd v CCMA and others[10] (Toyota SA), 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.

[37] In Colett v Commission for Conciliation, Mediation and Arbitration and others[11], the LAC confirmed that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

[38] It is evident that the Courts have endorsed the principle that where there is a delay with no reasonable, satisfactory and acceptable explanation for the delay, condonation may be refused without considering prospects of success and to grant condonation where the delay is not explained, may not serve the interests of justice.

[39] Condonation for delays in all labour law litigation is not simply there for the taking. The starting point is that an applicant in an application such as the present seeks an indulgence and bears the onus to show good cause and a proper case should be made out before the indulgence could be granted.

[40] It is in this context that the application for condonation stands to be decided.

The degree of lateness

[41] The first issue to be considered is the degree of lateness.

[42] In casu, the review application had to be filed by 9 April 2021 to fall within the prescribed six-week period. The review application was only filed on 17 August 2021, therefore it was filed more than four months late.

[43] A delay of more than four months is not insignificant but is indeed material, given the fact that a review application has to be filed within six weeks and considering the context within which labour litigation takes place and the system that is designed to ensure the effective and expeditious resolution of labour disputes. The Practice Manual (now repealed but applicable at the time of the filing of this application) expressly stated that a review application is by its nature an urgent application.

[44] The degree of lateness is however not to be considered in isolation.

Explanation for the lateness

[45] I have to consider the reasonableness of the delay by having regard to the explanation for the delay. As the LAC has held, the explanation has to be compelling and convincing.

[46] As the Applicant seeks an indulgence from the Court and bears the onus to satisfy the Court that condonation should be granted, it is incumbent on her to provide the Court with a full explanation for every period of the delay. It is not sufficient simply to list significant events that occurred during the period in question as that does not assist the Court in properly assessing the reasonableness of the explanation.[12]

[47] In short: the explanation for the delay must be comprehensive, convincing and compelling and should cover every period of the delay.

[48] The explanation tendered for the delay, as it appears from the Applicant’s affidavit, is as set out below.

[49] After 16 March 2021, she mistakenly went to the CCMA on incomplete facts. The date cannot be calculated until she had “a full and adequate information for the launching of the review”.

[50] According to the Applicant, she only had full knowledge of the material facts necessary for the review application on about 23 July 2023, after having full and complete reasons from the school governing board’s members.

[51] This is the entire explanation provided. The question is whether it constitutes a comprehensive, convincing and compelling explanation.

[52] In my view, it does not at all. The Applicant should provide a full and detailed explanation for every period of the delay and it is not sufficient to simply list significant events that occurred during the period of the delay. Instead of providing an explanation that would assist this Court in understanding the reasons for the delay, the Applicant provided a sketchy account of events with reference to only two dates, namely 16 March 2021 and 23 July 2021.

[53] Affidavits filed in review applications serve two primary purposes: to define the issues between the parties and to place the essential averments and evidence before the other parties and the court. Rule 7A of the Rules in terms of which this application was brought, provided for the delivery of four sets of affidavits in review applications namely a founding, supplementary, answering and replying affidavit.

[54] Rule 7A(2)(c) of the Rules provided that the notice of motion must be supported by an affidavit, setting out the factual and legal grounds upon which the applicant relies to have the decision or proceedings corrected or set aside. As to the requirement of setting out the legal grounds upon which the applicant relies in the founding affidavit, this requires of the applicant to set out, with sufficient precision and detail, the grounds for review and the bases on which such grounds are relied upon.

[55] In recognition of the fact that the record obtained by an applicant in a review application may reveal that averments made in the founding affidavit were erroneously made or necessary averments were omitted or need elaboration, Rule 7A(8)(a) permitted the applicant to deliver a supplementary affidavit within 10 days after the record is made available. This afforded the applicant the opportunity to supplement and/or amend the factual and legal grounds upon which he or she relies in light of the record. A weak founding affidavit can be augmented by a supplementary affidavit.[13]

[56] As a general principle, the applicant in a review application must make out his or her case in the founding affidavit, as may be supplemented by a supplementary affidavit, if necessary, after the review record becomes available.

[57] In casu, there is no explanation for the period between 16 March and 23 July 2021, except for a vague statement that the Applicant erroneously went to the CCMA. Furthermore, the period between 23 July 2021, when all the information necessary to launch the review was (on the Applicant’s own version) received, until 17 August 2021, when the review application was filed, remained unexplained.

[58] The delay during the period April, May, June and up to 22 July 2021 and between 23 July and 17 August 2021, remained unexplained and there is no indication as to what had happened during this period or why it took the Applicant from March to July 2021 to obtain full and adequate information to launch her review application. This Court is not told what the necessary information was, why the application could not be launched earlier without the information and why the information was necessary to launch the review application in the first place. This is more so as the review process envisages a scenario where the initial application could be supplemented at a later stage in the process. There are material gaps in the period of the delay which remained completely unexplained.

[59] What had been presented to the Court was not an explanation but rather a vague statement of facts, which had not been explained or put into context as to how it contributed to the delay. The ‘explanation’ tendered in casu is bereft of any substance and is wholly inadequate, there is no detailed account of or explanation as to material periods of the delay and this Court is in no position to understand or assess the reasonableness of the delay. The Applicant bears the onus to show that there is good reason for condonation to be granted, but she failed dismally in this regard.

[60] In casu, there is a further delay that cannot be ignored and that is the fact that the condonation application was only filed in April 2024, three years after the review application was supposed to be filed and more than two years and 8 months after the review application was indeed filed.

[61] It is trite that an application for condonation must be brought as soon as it was discovered that it would be necessary to bring such application, and this fact should have been clear to the Applicant by July 2021, when she consulted with her lawyer. If her lawyer failed to advise her on the applicable timeframes for filing an application for review, she should have been aware by July 2022 when the condonation point in limine was raised by the Respondent in its answering affidavit. Instead of considering the legal position, the Applicant filed a replying affidavit, denying that condonation was needed, just to turn around and make an application for condonation more than 18 months after denying that condonation was needed.

[62] There is no explanation as to the late filing of the application for condonation.

[63] The delay in filing the application for condonation is excessive and not minimal or insignificant. The degree of lateness is material considering the fact that the dispute arose as far back as December 2020 when the Applicant’s fixed-term contract was not renewed and almost four years later, the matter is not one step closer to finality.

[64] The Applicant dismally failed to tender a convincing, reasonable and acceptable explanation for the delay. Instead, she tendered a flimsy and sketchy explanation which did not cover significant periods of the delay and for other periods no explanation at all is tendered. The Applicant failed to discharge the onus to show good cause as to why the indulgence she seeks should be granted.

Prospects of success

[65] Having considered that the period of the delay in the filing of the review application is material and the explanation tendered wholly inadequate, it leaves the issue of prospects of success.

[66] In the authorities referred to supra, the courts have endorsed the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial.

[67] This was also confirmed in Grootboom v National Prosecuting Authority and another[14] where the Constitutional Court held that:

‘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. If the period of delay is short and there is an unsatisfactory explanation but there are reasonable prospects of success, condonation should be granted. However, despite the presence of reasonable prospects of success, condonation may be refused where the delay is excessive, the explanation is non-existent and granting condonation would prejudice the other party.’

[68] In view of the authorities referred to supra, my finding that the delay is material and the explanation tendered not satisfactory, the Applicant’s prospects of success are immaterial and thus need not be considered.

[69] Even if I were to take a lenient approach and consider the prospects of success, a perusal of the application for condonation does not assist this Court in assessing the Applicant’s prospects of success. In her application, the Applicant did no more than to state that she has prospects of success and to refer to her grounds for review. Effectively, the Applicant stated that her prospects of success are revealed by her grounds for review.

[70] This is wholly inadequate and is of no assistance to this Court. The Applicant seeks an indulgence and must make out a case for the indulgence she seeks. A vague averment to the effect that the prospects of success appear from the grounds for review does not assist this Court at all.

[71] This is so for the following reasons.

[72] First, the review application sets out the facts of the case and the grounds of review. It does not deal with prospects of success and such prospects are not automatically ‘revealed’ by the grounds for review.

[73] It seems as if the Applicant expects that this Court would embark on a “prospects of success finding mission” to find what her prospects of success are, without being told by the Applicant what those prospects are.

[74] Second, the application is opposed and the averments made in respect of the grounds for review, are disputed by the Respondent. It follows that this Court cannot simply have regard to the contents of the review application, as filed by the Applicant, and conclude that there are prospects of success on review. More is required.

Prejudice

[75] The Applicant submitted that she would suffer prejudice should condonation not be granted. This Court is not told what her prejudice would be.

[76] The result of the refusal to condone the late filing of the review application will be that the Applicant will be denied the opportunity to pursue this case before Court. However, it is evident that the Applicant did not pursue her case diligently.

[77] The notion that litigants will be denied access to a court to ventilate their case cannot be examined within a paradigm that ignores the interests of the adversary, nor of the ordinary dynamics of litigation, more especially, because the reality is that litigation

is a process in which adversaries make choices. If the consequences of choices that are made, or the consequences of inaction and

tardiness are that opportunities to pursue the matter are forfeited, it does follow that there is a failure of justice. The litigation

system affords litigants a process within which they must navigate their own routes and it is no failure of justice if their journey

culminates in a dead end.[15]

[78] The Constitutional Court, in the opening paragraph of Toyota SA[16], held that:

‘Time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes. The dispute-resolution

dispensation of the old Labour Relations Act was uncertain, costly, inefficient and ineffective. The new Labour Relations Act (LRA)

introduced a new approach to the adjudication of labour disputes. This alternative process was intended to bring about the expeditious

resolution of labour disputes which, by their nature, require speedy resolution. Any delay in the resolution of labour disputes undermines the primary object of the LRA. It is detrimental not only to the workers who may be without a source of income pending the resolution of the dispute but, ultimately, also to an employer who may have to reinstate workers after many years.’

[79] This Court has a discretion, which must be exercised judicially on a consideration of the facts of each case and in essence, it is a matter of fairness to both sides. While the refusal to condone the late filing of the review application will result in the Applicant being denied the opportunity to pursue its case before this Court, the Respondent’s prejudice outweighs the Applicant’s prejudice.

[80] The Applicant’s fixed-term contract expired at the end of December 2020 and in 2024, she seeks an order to the effect that she ought to be appointed as a Grade R teacher. The prejudice to the Respondent should such an order be granted almost four years later, is obvious.

[81] Most importantly, I have to endorse the aim of the LRA, namely to resolve labour disputes speedily and without delay. Granting condonation in a case like this would not be in the interest of justice as it would undermine the statutory purpose of expeditious dispute resolution.

[82] On an objective conspectus of all the facts, the Applicant’s application for condonation falls hopelessly short of the mark. The Applicant did not discharge the onus to show good cause and to provide an acceptable and plausible explanation for the delay. For the above reasons, it will not be in the interests of justice that the application for condonation be granted.

Costs

[83] The last issue to be decided is the issue of costs.

[84] In so far as costs are concerned, this Court has a broad discretion in terms of section 162 of the LRA to make orders for costs according to the requirements of law and fairness.

[85] The requirement of law has been interpreted to mean that the costs would follow the result. In considering fairness, the conduct of the parties should be taken into account and mala fides, unreasonableness and frivolousness are factors justifying the imposition of a costs order.

[86] In Zungu v Premier of the Province of KwaZulu-Natal and Others[17], the Constitutional Court confirmed that the rule that costs follow the result does not apply in labour matters. The Court should seek to strike a fair balance between unduly discouraging parties from approaching the Labour Court to have their disputes dealt with and, on the other hand, allowing those parties to bring to this Court (or oppose) cases that should not have been brought to Court (or opposed) in the first place.

[87] Mr Ponyane for the Applicant left the issue of costs in the hands of this Court.

[88] Ms Olivier for the Respondent submitted that the Applicant should be ordered to pay costs because she was informed that she needed to apply for condonation, but she refused to do so, until April 2024, when she reluctantly applied for condonation. Ms Olivier submitted that the Applicant is seeking an indulgence from this Court, but she failed to make out a case – instead, she insisted that she did not need to apply for condonation. The costs should follow the result.

[89] This is a case where the Court has to strike a balance, considering the requirements of law and fairness. The generally accepted purpose of awarding costs is to indemnify the successful litigant for the expense he or she has been put through by having been unjustly compelled to initiate or defend litigation. In Public Servants Association of SA on behalf of Khan v Tsabadi NO and Others[18], it was emphasised that:

‘…unless there are sound reasons which dictate a different approach, it is fair that the successful party should be awarded her costs. The successful party has been compelled to engage in litigation and compelled to incur legal costs in doing so. An appropriate award of costs is one method of ensuring that much earnest thought and consideration goes into decisions to litigate in this court, whether as applicant, in launching proceedings or as respondent opposing proceedings.’

[90] In my view, this is a case where it is appropriate to make a cost order. A cost order is a method of ensuring that decisions to litigate in this Court are taken with due consideration of the prescripts of the law, the Rules and the prospects of success.

[91] This Court is ordinarily reluctant to make orders for costs against individuals, for whom the prospect of an adverse costs order may serve to inhibit the exercise of what they perceive as their rights. This is not an immutable rule.

[92] The Applicant had to bring her application for review within the prescribed period of six weeks but failed to do so and notwithstanding the issue of condonation being raised by the Respondent, she persisted with her view that she was not late. She never considered the time periods in the LRA or when the six-week period was triggered – according to her, the period was only triggered when she, at her own leisure, obtained sufficient information. This is not what the LRA or applicable authorities provide. The Applicant persisted with her view that she was not late in filing her review application, until April 2024, when she made a U-turn and filed an application for condonation. The application was half-hearted, still insisting that it was not necessary to apply for condonation. In her condonation application, the Applicant failed to make out a case for the indulgence she sought.

[93] Fairness dictates that the Respondent cannot be expected to endure enormous costs defending litigation where more thought and consideration had to be put in when the Applicant approached this Court with an application for review, without any attempt to adhere to the applicable time periods and to comply with the Rules. Another consideration is that the Respondent funds this litigation from taxpayer’s money and there is no sound reason to justify why the taxpayers should fund the opposition of litigation where the litigation is handled as it is by the Applicant. The interests of justice will be best served by awarding a cost order in favour of the Respondent.

[94] I am alive to the fact that the Applicant is an individual, but I cannot ignore the fact that she ultimately initiated this application and pursued it in flagrant disregard for the applicable time periods. This is evident from the fact that her application for review was filed in August 2021, but her replying affidavit and application for condonation were only deposed to and filed in April 2024. This conduct is certainly not indicative of a litigant who is sensitive to the applicable time periods, who respects the purpose of the LRA and who is serious about pursuing litigation. To make matters worse, she was legally represented and did not approach this Court as an unrepresented layperson.

[95] In the present circumstances, the interests of justice require that the Applicant pays at least a portion of the Respondent’s costs. In my view, a sum equivalent to 50% of the Respondent’s taxed costs will best serve those interests.

[96] In the premises, I make the following order:

Order

1. The application for condonation for the late filing of the review application is dismissed;

2. The Applicant is to pay the First, Second and Third Respondents’ costs, limited to 50% of the taxed costs.

Connie Prinsloo

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr M. J. Ponoane from Ponoane Attorneys For the First, Second and Third Respondents: Ms M. P. Olivier from the State Attorney, Kimberley

[1] Act 66 of 1995, as amended.

[2] (2021) 42 ILJ 184 (LC) at para 10. See also: Chirwa v Transnet Ltd and others [2007] ZACC 23; 2008 (4) SA 367 (CC) at para 155, Gcaba v Minister of Safety and Security and others [2009] ZACC 26; (2010) 1 SA 238 (CC) at para 75.

[3] 1962 (4) SA 531 (A) at 532C - F.

[4] (2002) 23 ILJ 1229 (LAC) at para 3.

[5] [1999] ZALAC 24; (2000) 21 ILJ 166 (LAC).

[6] [2014] ZALCJHB 115; (2015) 36 ILJ 232 (LC) at para 22.

[7] Ibid at para 25.

[8] GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed).

[9] Practice Manual of the Labour Court of South Africa, effective 2 April 2013 (repealed).

[10] [2015] ZACC 40; (2016) 37 ILJ 313 (CC) (Toyota SA).

[11] [2014] ZALAC 1; [2014] 6 BLLR 523 (LAC).

[12] See: Independent Municipal & Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and others [2009] ZALC 137; (2010) 31 ILJ 1413 (LC).

[13] A Myburgh, C Bosch, ‘Reviews in the Labour Courts’, LexisNexis at pp 438 – 441.

[14] [2013] ZACC 37; (2014) 35 ILJ 121 (CC) at para 51.

[15] See: Edcon Ltd v Steenkamp and others [2017] ZALAC 81; (2018) 39 ILJ 531 (LAC) at para 34.

[16] Toyota supra at para 1.

[17] [2018] ZACC 1; (2018) 39 ILJ 523 (CC) at para 24.

[18] [2012] ZALCJHB 17; (2012) 33 ILJ 2117 (LC) at para 176.