Greater Taung Local Municipality v South African Local Government Bargaining Council and Others (JR 1215/18) [2021] ZALCJHB 16 (17 January 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1215/18

In the matter between:

GREATER TAUNG LOCAL MUNICIPALITY Applicant

and

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINIG COUNCIL First

Respondent

IMATU obo BAKANG SEBITLOANE Second

Respondent

S.R. MODIPA N.O. Third

Respondent

Enrolled: 22 July 2020

Delivered: 17 January 2021

JUDGMENT

MOSIME, AJ

[1] In this application, the Second Respondent, (applicant in reconvention), asks for three prayers. First, is an application for the dismissal of the review application filed by the Greater Taung Municipality on the 19 June 2018, in terms of Rules 7 and 11 of the Rules for the Conduct of Proceedings in the Labour Court (the rules), read with section 158 (1)(c) of the Labour Relations Act[1] (the LRA). Second, to make the Arbitration Award under review, dated 22 May 2018, rendered by the Third Respondent under the auspices of the bargaining council, the South African Local Government Bargaining Council (SALGBC) an order of this Court; and third, costs. The application is accompanied by a Founding Affidavit of Shagan Fergus Windvogel, an official of the Second Respondent (IMATU or the union), who also represents that party in these proceedings. This application is referred to as the Rule 11 application hereinafter.

[2] The Rule 11 application was filed with the registrar on the 30 January 2019[2] and served on the applicant’s attorneys of record in the review application on the same date. The applicant (the Second Respondent herein) filed its Notice of intention to oppose[3] on 06 February 2019[4], and the answering affidavit on the 12 September 2019, notably seven months later. The latter was not accompanied by any application for condonation[5]. The second respondent objected to the late submission of the answering affidavit without any application for condonation[6].

[3] On 13 September 2019, the second respondent filed a notice of objection to the filing of an answering affidavit seven months after the expiry of the prescribed period, and sans application for condonation. The latter duly stated in the notice of objection that the applicant was “required to apply for condonation for the late filing of its Answering Affidavit” [7].

[4] Apparently prompted by the second respondent’s notice of objection, the applicant filed a Supplementary Affidavit on 14 July 2020. The supplementary affidavit included a prayer therein for leave of the court for admission of that affidavit into evidence. It appears that the sole purpose of the affidavit was to seek condonation for the late filing of the answering affidavit “in the Rule 7 and 11 application”. There is a notable delay of ten months between the notice of objection and the filing of the supplementary affidavit, including the application for condonation. This affidavit was also filed seventeen months after the prescribed period referred to in the notice of motion[8] in respect of the Rule 11 application.

[5] From the brief conspectus above, there are two disputable issues. First a delay envisaged in terms of Clause 11.2, read with Clause 16 of the Practice Manual of the Labour Court as well failure to act in compliance with the directives stipulated in these provisions; second, a delay in the filing of the answering affidavit to the Rule 11 application. There are further delays in the filing of the application for condonation and the supplementary answering affidavit, challenged by the second respondent as being without good cause.

[6] The second respondent submits in the founding affidavit that the absence of an answering affidavit to its papers should result in the applicant failing to set out any defence it intended to raise in support of its case. In such circumstances, without any duly substantiated reasons raised as required in the Practice Manual, the deeming provisions of withdrawal and consequential archiving of the file must result.

[7] The Practice Manual provides[9] further that where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed. It is necessary to consider how all these factors affect the current application.

[8] Clause 16 of the Practice Manual provides as follows:

16. ARCHIVING FILES

16.1 In spite of any other provision in this manual, the Registrar will archive a file in the following circumstances:

· in the case of an application in terms of Rule 7 or Rule 7A, when a period of six months has elapsed without any steps taken by the applicant from the date of filing the application, or the date of the last process filed;

16.2 A party to a dispute in which the file has been archived may submit an application, on affidavit, for the retrieval of the file, on notice to all other parties to the dispute. The provisions of Rule 7 will apply to an application brought in terms of this provision.

16.3 Where a file has been placed in archives, it shall have the same consequences as to further conduct by any respondent party as to the matter having been dismissed.

[9] In addition to these provisions, Clause 11.2 of the Practice Manual states:

11.2 Applications to review and to set aside arbitration awards and rulings

11.2.1 Once the registrar has notified an applicant in terms of Rule 7A (5) that a record has been received and may be uplifted, the applicant must collect the record within seven days.

11.2.2 For the purposes of Rule 7A (6), records must be filed within 60 days of the date on which the applicant is advised by the registrar that the record has been received.

11.2.3 If the applicant fails to file a record within the prescribed period, the applicant will be deemed to have withdrawn the application, unless the applicant has during that period requested the respondent’s consent for an extension of time and consent has been given. If consent is refused, the applicant may, on notice of motion supported by affidavit, apply to the Judge President in chambers for an extension of time. The application must be accompanied by proof of service on all other parties, and answering and replying affidavits may be filed within the time limits prescribed by Rule 7. The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.

11.2.4 If the record of the proceedings under review has been lost, or if the recording of the proceedings is of such poor quality to the extent that the tapes are inaudible, the applicant may approach the Judge President for a direction on the further conduct of the review application. The Judge President will allocate the file to a judge for a direction, which may include the remission of the matter to the person or body whose award or ruling is under review, or where practicable, a direction to the effect that the relevant parts of the record be reconstructed.’

[10] At Clause 11.2.7, the Practice Manual provides:

11.2.7 A review application is by its nature an urgent application. An applicant in a review application is therefore required to ensure that all the necessary papers in the application are filed within twelve (12) months of the date of the launch of the application (excluding Heads of Arguments) and the registrar is informed in writing that the application is ready for allocation for hearing. Where this time limit is not complied with, the application will be archived and be regarded as lapsed unless good cause is shown why the application should not to be archived or be removed from the archive (All emphasis supplied).

[11] It is also well established that as soon as the party in default becomes aware that condonation is necessary, an application for condonation must be filed without further delay[10]. In that regard, this court (per Bhoola J) held as follows in Horatious Seatlolo and others v Entertainment Logistics Services (A Division of GALLO AFRICA LTD)[11]:

“It is trite that an application for condonation must be brought as soon as the party becomes aware of the default. This principle has been emphasized by the Supreme Court of Appeal on numerous occasions (see Saloojee supra at 138H; Rennie v Kamby Farms (Pty) Ltd 1989 (2) SA 124 (A) at 129G; and Napier v Tsaperas 1995 (2) SA 665 (A) at 671 B-D). This approach has been endorsed by the Labour Appeal Court which in fact advocates bringing the application for condonation on the same day it is discovered to be necessary. See in this regard inter alia Allround Tooling (Pty) Ltd v NUMSA and others [1998] 8 BLLR 847 (LAC) at 849 para 8; NEHAWU v Nyembezi [1999] 5 BLLR 463 (LAC) at 464 D-F; and Librapac CC v Fedcraw and Others [1999] 6 BLLR 540 (LAC) at 543.”

[12] A review application in terms of Rule 7A follows a distinct and direct route. The applicant files a formal application through a notice of motion and a founding affidavit. Thereafter, the applicant must lift the questioned arbitration hearing record from the registrar, serve it on the other parties opposing the application, and thereafter, if necessary, file a supplementary affidavit

[13] If, for any reasons, the record cannot be uplifted and filed within a prescribed period of sixty days, the applicant party must[12]:

13.1 Request consent for the extension of that sixty-day period from the respondent; and

13.2 If consent is refused, on notice of motion (as prescribed in Rule 7) supported by an affidavit, apply to the Judge President in chambers for an extension of time;

13.3 The Judge President will then allocate the file to a judge for a ruling, to be made in chambers, on any extension of time that the respondent should be afforded to file the record.

[14] If the applicant fails to file a record within the prescribed period of sixty days and has not followed the steps above, the applicant will be deemed to have withdrawn the application, through inordinate delays, and the application will be archived in terms of the

provisions of clause 16 of the Practice Manual. The Manual provides further that where a file has been placed in archives, it shall have the same consequences ‘as to further conduct by any respondent party as to the matter having been dismissed’. The review application in the current matter should be deemed to be in that position presently, viz. as to further conduct by the registrar, withdrawn and archived; and “the same consequences as to further conduct by any respondent party as to the matter having been dismissed”. The main subject in the last statement lies more in the phrase ‘the same consequences’ than ‘dismissed’. This court has confirmed that an application can only be dismissed through a Court Order, and not a deeming provision in the Practice

Manual[13].

[15] In that regard, this Court in Minister of Justice and Correctional Service v Mashiya and Others[14] held as follows:

“[23] … the provisions of the Practice Manual, and in particular, clauses 11.2.3 and 16.1 are not a substitute for the provisions of rule 11 of the Rules of this Court. Molahlehi J in his judgment specifically held that the provisions of the Practice Manual were simply a procedural tool to facilitate the management of review applications and did not trump the Rules of this Court.

[24] There is a perception amongst practitioners in this Court that the raising of these provisions can lead to an application being dismissed, and this is premised on an incorrect interpretation of the provisions of clause 16.3 of the Practice Manual which provide that:

“Where a file has been placed in archives, it shall have the consequences as to further conduct by any respondent party as to the matter having been dismissed.”

[25] These provisions as already indicated above, cannot trump over the Rules of this Court. Thus, it cannot be correct that if a file is archived by way of a directive or as a result of an administrative action by the office of the Registrar, the implications thereof are that the matter is dismissed for all intents and purposes. In most instances, files are archived at the instance of the Registrar of this Court to the extent that there was non-compliance with the Rules of this Court. Where however, there is a directive from a Judge to archive a file, the effect thereof is that the file will remain dormant until such time that an application is launched in terms of the provisions of clause 16.2 to retrieve it. Only upon a consideration of that application can a Judge (normally in chambers) dismiss the application to retrieve the file, which would then have the effect of dismissing the review application. In this case, it was contended on behalf of Mashiya that a directive was sought from the Judge President in terms of the provisions of clause 16 of the Practice Manual, but that the matter was not attended to. It cannot however follow from those unsuccessful attempts be concluded that the review application in this matter is of necessity dismissed.

[26] To reiterate, a mere directive or administrative action on the part of the office of the Registrar to have a file archived cannot have the status of a court order. A matter can only be dismissed through a court order. Thus, if a respondent party is of the view that the applicant party in review proceedings is not doing enough to expedite the finalisation of the matter, including even after the pleadings have been closed, the appropriate route would be to approach the court with a rule 11 application to dismiss that review application.

[27] The net effect of clauses 11.2.3 and 16.1 of the Practice Manual if invoked is merely to deem applications as withdrawn, which can be reinstated by way of an application for condonation as it had happened in this case, or where a matter is archived in terms of clause 16 of the Practice Manual, it can equally be retrieved upon such an application by the affected party, unless determined otherwise by a Judge in chambers.”

[16] A party to a dispute in which the file has been archived may therefore submit an application, on affidavit, for the retrieval and

reinstatement of the matter, on notice to all other parties to the dispute. The provisions of Rule 7 will apply to an application

brought in terms of this provision[15]. Alternatively, that party can duly file an application for condonation, with good cause shown, of the delays occasioned in the

filing of the record within the prescribed period.

[17] Either way, where there is no consent given by the respondent, the extension of the sixty-day time period for the filing of the record, or the granting of the condonation, following the delays occasioned by any party, including the Commission for Conciliation, Mediation and Arbitration, a bargaining council or the registrar’s office, can only be granted by the judge, either in chambers or in the open court. Prior to that, the application will be deemed as withdrawn and archived. The option availed for the applicant is the seeking of an order dismissing the review application, as in the present case; and for the respondent, seeking the judge’s directive and extension of time, or condonation[16] for the occasioned delays.

[18] In South African Municipal Workers Union obo Mlalandle v South African Local Government Bargaining Council and Others[17](SAMWU) the Court held further that:

“To the extent that the defaulting party may contend that it would suffer prejudice on account of any application of clause 11.2.3 of the Practice Manual, or that it would be deprived of its right to access to court and to have its application fully ventilated, the proper order is to strike the review application from the roll. Once a matter has been struck off the roll, nothing prevents a party from filing an application to have the review application reinstated, together with an application in which condonation for the late filing of the record is sought”.[18] (My emphasis)

And, at paragraph 6:

“Where no extension is consented to, it therefore follows that the application remains withdrawn until such time that the Applicant has filed the necessary papers as contemplated in the manual, to seek an extension from the Judge President, which essentially entails seeking an indulgence.”

[19] It is apt to further quote the judgment in SAMWU extensively to cast light onto the facts in this matter, as follows[19]:

“[9] The Third Respondent’s contention was that there was no longer a lis before the Court because the review application was deemed to have been withdrawn. To this end, the Applicant was obliged to have brought an application for the reinstatement of the review application, alternatively, an application for condonation.

[10] I agree with the submissions made on behalf of the Third Respondent, and this approach is in line with the authorities as referred to elsewhere in this judgment. Accordingly, by virtue of the fact that there was non-compliance with the 60-day period contemplated in clause 11.2.2 of the Practice Manual, the review application as filed by the Applicant is deemed to have been withdrawn.”

[20] At the time of the bringing of the application for the dismissal of the review in this matter, the applicant (Taung Municipality) had neither made any attempts to reinstate the application nor formally seek condonation for the delays in filing the record. As pointed out in the conspectus above, there were further defects, such as:

20.1 The answering affidavit to the Rule 11 application was filed out of time and did not seek condonation for itself nor for the late filing of the record.

20.2 Only after some time that the second respondent pointed these defects out, and objected to the filing of the answering affidavit, did the applicant file a supplementary affidavit, with some substantiation for the condonation of the ‘late filing of the answering affidavit’.

20.3 Furthermore, the application for condonation was, in my view, tersely crafted and did not satisfy all the substantive elements required to vault the normative test for such application. As I viewed it, it was put as a mere throwaway statement[20].

[21] In the supplementary affidavit, the asking for condonation is crafted merely as follows:

“6 The answering affidavit was due on 19 February 2019, being 10 (ten) days after filing the notice of intention to oppose, but was filed on 18 September 2019. Accordingly the affidavit was filed 7 (seven) months late.

7. The delay was unfortunately unavoidable because counsel seized with the matter, Advocate O.K. Chwaro was acting as a High Court judge in the North West High Court, Mafikeng.

8. At the soonest opportunity, after Counsel’s term of being an Acting Judge had come to an end, the answering affidavit was filed with the above Honourable Court on 18 September 2019.

9. Accordinlgly, I submit that the delay of 7 (seven months) was warranted in the circumstances.

10. Furthermore, it is submitted that any prejudice that the Second Respondent suffers flowing from the late filing of the answering affidavit be remedied by a costs order and not the dismissal of the review application in toto.”

[22] The only offering of formal facts and substantiation of the application for condonation in relation to the delay in prosecuting the review application and submitting the answering affidavit timeously, is found in the Heads of Argument submitted by Advocate Mosam SC on 17 July 2020. The applicant refers to the supplementary affidavit and points out that the in the Heads, it seeks the Court’s condonation “for the late filing of the answering affidavit”.

[23] It is plain from this that the only questionable period in this regard, which is preliminary to the consideration of the merits of the Rule 11 application, is the explanation of the delay between the time the applicant filed the Notice of intention to Oppose[21] on 06 February 2019[22], and the filing of the answering affidavit on 12 September 2019, without any application for condonation.

[24] This (explanation) is curtly explained in the supplementary affidavit as “unfortunately unavoidable because counsel seized with the matter, Advocate O.K. Chwaro was acting as a High Court judge in the North West High Court, Mafikeng”.

[25] No explanation is offered as to the reason the applicant could not be able to secure the services of another advocate, but instead waited seven months for Advocate Chwaro to complete the acting stint at the High Court; no explanation as to the reason the applicant’s attorney did not inform the second respondent or the registrar of the need and the compelling reasons for waiting so long for counsel; and no explanation as to why any other counsel could have crafted a discrete application seeking from the judge in chambers an extension of the time limits or appropriate directives.

[26] As indicated above, there was no accompanying application for condonation in the supplementary affidavit.

[27] In the Heads of Argument in respect of the Rule 7 and 11 application, on 17 July 2020, the applicant proffered averments on the issue of condonation in respect of the answering affidavit[23] to that application in legal submissions. I note that these formal statements of facts or circumstances which are offered to prove or substantiate the reasons for the delay and to purportedly show good cause for the condonation sought, were not properly supplied in the supplementary affidavit. The offering of these statements of facts and formal submissions in the heads of argument does not cure the defect that results in the failure to deal therewith in the pleadings through sworn statements.

[28] Argument is not evidence and it is not given under oath. It is merely a persuasive comment made by the parties or legal representatives with regard to questions of fact or law. Argument does not constitute evidence, and cannot replace evidence. Thus the heads of argument do not serve as the answering affidavits of the respondent’s pleadings. More so, the respondent is invariably deprived of the opportunity to reply and refute or comment to the allegations contained in the statements submitted through argument.

[29] The curt, brusque, and abrupt explanation for the delay offered in the supplementary affidavit does not meet the requirements for a proper application for condonation. The courts have on many occasions stressed that the factors which must be considered when exercising the discretion whether to grant condonation, following on Melane v Santam Ltd[24] include the degree of lateness, explanation for the delay, prospects of success, degree of non-compliance with the rules, the importance of the case, the interest in finality of the judgment of the Court, the convenience of the Court and the avoidance of unnecessary delay in

the administration of justice[25].

[30] In Uitenhage Transitional Local Council v SA Revenue Services[26] The Court stated the following:

“… Condonation is not to be had merely for the asking; a full, detailed and accurate account of the cause of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. It must be obvious that, if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.” (Emphasis supplied)

[31] It was held in Oosthuizen v Imperial Logistics CC[27] that “in determining what constitutes good cause the respective factors of degree of lateness, the prospects of success and the importance of the matter must be considered. See: Melane v Santam Insurance CO. 1962 (40 SA 531 (A). The above-mentioned factors are inter-related and not individually decisive. See: National Union of Mineworkers and Others v Western Holdings Gold Mine (1994) 15 ILJ 610 (LAC) at 613B-E”.

[32] According to the Court, the explanation for the delay must cover the entire period thereof, that is, each and every step throughout the process must be covered by the explanation[28]. This, in my view should include the explanation for the delay in moving an application for condonation itself. The Appellant’s explanation of the lengthy delay in this instant fell short of the yardstick set out above. It is unconvincing and wanting in material respects. The explanation does not cover each and every step of the period of the delay nor does it address with sufficient particularity, each and every factor stipulated in Melane v Santam, regarding the delays in filing the answering affidavit.

[33] The answering affidavit that was submitted outside the stipulated time periods, in circumstances wherein the (second) respondent had formally objected to its late filing, cannot, without a proper explanation seeking condonation be admitted as evidence. Consequently, there is no defence against the application in terms of Rule 11.

[34] In the founding affidavit, the second respondent submits after the lapse of a period more than seven months since the applicant filed the review application, signifies an abrupt stop and such conduct of not pursuing the matter any further should constitute and could only be interpreted as unequivocal abandonment of same.

[35] The argument advanced in the heads by the applicant is that the reasons for the delay cannot be attributed solely to its conduct but the bargaining council which failed to deliver the recordings, despite numerous telephonic enquiries. The applicant submits further that “with direction from the above Honourable Court, it is submitted that a reconstruction of the missing evidence is possible”.

[36] This court has expressed itself in a line of judgements[29] and confirmed that the provisions of the Practice Manual have a binding effect on the administration of its own affairs. This is in line with a normative principle expressed in a Latin maxim ‘cursus curiae est lex curiae’, meaning that the established practices of the court are the laws of the court. If all practitioners towed line, there would be an ebbing of the wave of Rule 11 applications, giving way to the court dealing with substantive merits of these matters.

[37] In this matter, the applicant should have sought the consent of the second respondent to the extension of the 60-day period for the submission of the record as well support on the seeking of a directive from the judge on the way in which that record could have been reconstructed. Failure to do so resulted in the deeming of the review application withdrawn. In that case, the applicant’s only option would be pursuing an application to the judge in chambers for the reinstatement of the review application.

[38] In the SAMWU case, the Court states[30]:

“In the absence of an application to reinstate the review application, or further in the absence of an application for condonation as inferred from the provisions for such non-compliance, the Court cannot exercise its discretion in a vacuum. To therefore request the Court to exercise its discretion, and to ignore the fact that no formal request or application have been made is indeed a big ask, which the court cannot accede to. To do so would make a mockery of practices in this court which are meant to ensure its smooth and efficient running. It is not for this court to willy-nilly grant extensions or indulgences where no formal applications have been made in that regard”.

[39] It is therefore unavoidable that in this matter, the conclusion the court considers prudent presently should be that the review application is deemed to be withdrawn in line with the provisions of the Practice Manual. However, since the manual does not “trump” Rules of the Court, the applicant still has the option open to make application, if it deems that options fit, for the reinstatement of the review application, accompanied by a substantive application for the condonation of same.

[40] The second respondent has also made a prayer for the order making the arbitration award questioned in the review application, an order of court. I find no legal constrains in making that order.

[41] I have had regard to the requirements of law and fairness in considering costs, and having done so, I am of the view that a cost order is not warranted in this matter.

[42] In the premises the following order is made:

Order:

1. The application for review as brought by the Applicant is deemed to have been withdrawn by virtue of the provisions of clause 11.2.3 of the Practice Manual of this Court.

2. The arbitration Award issued by the Third Respondent as nominee official of SALGBC (the First Respondent), under case Number NWD 041714, is hereby made an Order of this Court.

3. There is no order as to costs.

________________

Mosime, AJ

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv.

A Mosam SC

Instructed by: Kgomo

Attorneys Inc., Mafikeng.

For the Second Respondent: Mr Shagan Windvogel

Union Official: IMATU

[1] No. 66 of 1995, as amended.

[2] The Affidavit is dated 30 January 2019, Indexed Dismissal Bundle, page 13.

[3] Rule 7(4)(b) requires that “a notice of opposition and an answering affidavit must be filed within 10 days from the day on which the application is served on the party opposing the application” (my emphasis).

[4] Indexed Bundle, page 30-31.

[5] However, in an attempt to remedy this shortcoming, the Municipality later filed a supplementary answering affidavit, which contained an application for condonation that is dealt with below.

[6] Rule 7(4)(a), read with Clause 11.4.2, Practice Manual.

[7] The Practice Manual of the Labour Court provides at Clause 11.4.2, that where the respondent or the applicant has filed its opposing or replying affidavits outside the time period set out in the rules, there is no need to apply for condonation for the late filling of such affidavits unless the party upon whom the affidavits are served files and serves a Notice of Objection to the late filing of the affidavits. The Notice of Objection must be served and filed within 10 days of the receipt of the affidavits after which time the right to object shall lapse.

[8] Indexed Bundle, p2; see also footnote 2 supra.

[9] At Clause 16.3.

[10] See: CWIU and another v Ryan and others [2001] 3 BLLR 337 (LC).

[11] (2011) 32 ILJ 2206 (LC).

[12] Practice Manual, Clause 11.2.3.

[13] Minister of Justice and Correctional Services v Mashiya and Others (J16/2014) [2017] ZALCJHB 140 (5 May 2017).

[14] [2017] ZALCJHB 140 (5 May 2017) at paras 23 to 27.

[15] Practice Manual, Cluse 16.3.

[16] Ralo v Transnet Port Terminals and others (2015) 36 ILJ 2653 (LC).

[17] [2017] 1 BLLR 99 (LC)

[18] Ibid at paragraph 5.

[19] Id fn 17 at paras 9 to 11.

[20] At paragraphs 7 to 10 of the Supplementary Affidavit.

[21] Rule 7(4)(b) requires that “a notice of opposition and an answering affidavit must be filed within 10 days from the day on which the application is served on the party opposing the application” (my emphasis).

[22] Indexed Bundle, page 30-31.

[23] Respondent’s Heads of Argument, paragraph 6, states: “… the Applicant seeks the above Honourable Court’s condonation for the late filing of the answering affidavit”.

[24] 1962 (4) SA 531 (AD).

[25] See in this regard: Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and Others [2013] 2 All SA 251(SCA) para11.

[26] [2004] (1) SA 292 (SCA) at 279 I-J.

[27] (JA74/2012 and JA75/2012) [2014] ZALAC 106 (21 March 2014).

[28] See: NUMSA and Another v Hillside Aluminium [2005] ZALC 25; [2005] 6 BLLR 601 (LC): “An unacceptable delay and unsatisfactory explanation will preclude the granting of condonation irrespective of the prospects of success”. See: NUMSA v Council for Mineral Technology [1993] 3 BLLR (LAC) at 211G-H.

[29] Tlhotlhalemaje J makes reference to this line of judgements in South African Municipal Workers Union obo Mlalandle v South African Local Government Bargaining Council and Others (supra): Minister of Justice and Correctional Services v Mashiya and Others (J16/14) [2015] ZALCJHB 68 (5 March 2015); Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others (J 2845/13) [2014] ZALCJHB 7; (2014) 35 ILJ 1672 (LC); Ralo v Transnet Port Terminals and others (2015) 36 ILJ 2653; Shaik v Commission for Conciliation, Mediation and Arbitration and Others (JR874/13) [2016] ZALCJHB 239 (8 July 2016)

[30] Id fn 17 at para 11.