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South Africa Judgment

Labour Court Johannesburg

Gonyela and Others v Ginami Trading 36 CC (JS13/2021) [2021] ZALCJHB 324 (7 October 2021)

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Source document

01

Holding and result

The court found that the applicants provided a sufficient explanation for the delay in referring their statement of claim, as they made various attempts to have the referral processed but were let down by their representative. The applicants also demonstrated good prospects of success, alleging unfair retrenchment without consultation and underpayment of severance pay. The court considered the prejudice the applicants would suffer if condonation was refused and, in the absence of opposition, granted the application for condonation.

Court disposition

Condonation granted for the late referral of the statement of claim.

Orders

  • The late referral of the Statement of Case is condoned with no order as to costs.
  • The respondent has 10 days from the date of this order to file a statement of defence, failing which the applicants may apply for default judgment.

02

Material facts

Parties

Sandiso Gonyela and 6 Others

Applicant

Ginami Trading 36 CC

Respondent

03

Procedural history

  1. Posture

    Condonation Application / Application for Condonation of Late Referral

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants contend that their referral to the Labour Court was delayed due to administrative errors and miscommunication by the CCMA and their initial representative, the Casual Workers Advice Office. They made repeated efforts to ensure the referral was done, only to discover it had not been processed. They argue they were unfairly retrenched without consultation and paid only half of their severance pay, and would suffer prejudice if condonation is refused.
Respondent
The application was unopposed; no arguments were submitted by the respondent.

05

Court’s reasoning

  1. 01

    Section 191(11)(b) of the Labour Relations Act, 66 of 1995

    A court may condone the late referral of a statement of claim if the applicant provides a satisfactory explanation for the delay and demonstrates prospects of success.

  2. 02

    National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC)

    Prejudice to the applicant if condonation is refused is a relevant consideration in granting condonation.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicants provided a sufficient explanation for the delay in referring their statement of claim, as they made various attempts to have the referral processed but were let down by their representative. The applicants also demonstrated good prospects of success, alleging unfair retrenchment without consultation and underpayment of severance pay. The court considered the prejudice the applicants would suffer if condonation was refused and, in the absence of opposition, granted the application for condonation.

Obiter and limits

  • The court noted that the matter was unopposed and that the applicants acted diligently once they became aware of the failure to refer their claim.

Court disposition

Condonation granted for the late referral of the statement of claim.

  • The late referral of the Statement of Case is condoned with no order as to costs.
  • The respondent has 10 days from the date of this order to file a statement of defence, failing which the applicants may apply for default judgment.

Source and reliance status

Labour Court Johannesburg

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Judgment text

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Source document

Labour Court Johannesburg

Judgment

[2021] ZALCJHB 324

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Not of interest to other judges

Case no: JS13/2021

In the matter between:

SANDISO GONYELA AND 6 OTHERS Applicant

and

GINAMI TRADING 36 CC Respondent

Heard: 7 October 2021

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 7 October 2021.

Summary: Unopposed application to condone the late referral of a statement of claim

JUDGMENT

COETZEE AJ

[1] The applicants attended Court from where they attended a virtual meeting.

[2] The application is unopposed

[3] The applicants allege that they were retrenched unfairly and that they were only paid one half of their severance pay.

[4] They referred their dispute to the Commission for Conciliation, Mediation and Arbitration ("the CCMA") who issued a certificate of non-resolution and set the matter down for arbitration. The matter was subsequently referred to the Labour Court.

[5] The referral to the Labour Court is approximately 6 months late. The delay is excessive.

The explanation for the delay

[6] The CCMA initially set the applicants' dispute down for arbitration. On the set down date, they were informed by the CCMA that the set down was in error and that the matter must be adjudicated by the Labour Court.

[7] They first approached the Casual Workers Advice Office in Germiston who promised to do the referral. They made several attempts to establish whether the referral was done, and they were assured that it was.

[8] Eventually the applicants took their file to the Labour Court and established that the referral had not been done. They received advice to get assistance from a Pro Bono organisation and approached several who could not assist them. They eventually succeeded in referring the matter to the Labour Court.

[9] They submit that they have good prospects of success as they were not consulted but dismissed for operational requirements. In addition, they were paid only 50% of their severance pay.

[10] They allege that they would suffer prejudice if their matter cannot proceed.

Analysis

[11] The explanation for the delay is sufficient as they applicants made various efforts to have the referral done but was left in the lurk by their representative. They have good prospects of success.

[12] The application should succeed.

Costs

[13] The matter is unopposed.

Order

[14] I make the following order:

1. The late referral of the Statement of Case is condoned with no order as to costs.

2. The respondent has 10 days from the date of this order to file a statement of defence failing which the applicants may apply for default judgment.

F. Coetzee

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant: Two applicants

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC)

Case cited

Labour Relations Act, 66 of 1995

Legislation

Legislation referenced in the available case record.

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