Mabasa v Twin City Development (Pty) Limited (JS555-19) [2021] ZALCJHB 111 (27 May 2021)
- Citation
- [2021] ZALCJHB 111
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Labour Court Johannesburg
- Panel
- F Coetzee
- Case number
- JS555-19
More details
- Court
- Labour Court Johannesburg
- Panel
- F Coetzee
- Case number
- JS555-19
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the initial delay of 22 days in referring the dispute was not excessive and the applicant's explanation was reasonable. The applicant's lack of knowledge of time frames and inability to obtain assistance from the Legal Aid Board and Department of Labour were accepted as plausible. The subsequent delay in filing the condonation application was not explained, but the court attributed this to the inaction of the applicant's legal representative and held that the applicant should not be unduly prejudiced by his attorney's neglect. The respondent's argument that the applicant, as a manager, should have known the time frames was rejected due to lack of evidence that he dealt with employment matters. The prospects of success were found to be reasonable, as the applicant alleged an unfair retrenchment process and the respondent failed to provide substantive contrary evidence. Balancing all considerations, the court held that it was in the interests of justice to grant condonation.
Court disposition
Condonation granted for the late filing of the statement of claim; no order as to costs.
Orders
- The late filing of the statement of claim is condoned with no order as to costs.
02
Material facts
Parties
Musa Mabasa
ApplicantTwin City Development (Pty) Limited
Respondent03
Procedural history
Posture
Condonation Application / Interlocutory Application for Condonation of Late Referral
04
Questions and positions
Legal issues
- 01
Whether the applicant has provided a reasonable explanation for the delay in referring the dispute to the Labour Court.
- 02
Whether the delay in filing the condonation application is excusable.
- 03
Whether the applicant has prospects of success in the main claim for unfair dismissal.
Party arguments
- Applicant
- The applicant contends he was unaware of the relevant time frames and Labour Court Rules. He faced financial difficulties in securing legal representation and was unable to obtain assistance from the Legal Aid Board and the Department of Labour, both of which failed to inform him of any time frames. Upon raising funds, he instructed an attorney and filed the statement of claim. He did not provide an explanation for the delay in filing the condonation application, which may be attributed to his attorney's inaction.
- Respondent
- The respondent argues that the applicant, being a manager, should have been aware of the time frames for referral. It is unlikely that the Legal Aid Board and Department of Labour would not assist him. The respondent also alleges that the applicant had legal representation at the conciliation stage and did not attend meetings, instead referring the employer to his attorney. The respondent disputes the applicant's version of the retrenchment process but provides no further details.
05
Court’s reasoning
Legal principles
- 01
Labour Court Rules
An application for condonation must be brought when the statement of case is served, and the delay must be reasonably explained.
- 02
National Union of Metalworkers of SA v Council for Mineral Technology [1999] 3 BLLR 209 (LAC)
The interests of justice require consideration of the explanation for delay, prejudice to the parties, and prospects of success.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the initial delay of 22 days in referring the dispute was not excessive and the applicant's explanation was reasonable. The applicant's lack of knowledge of time frames and inability to obtain assistance from the Legal Aid Board and Department of Labour were accepted as plausible. The subsequent delay in filing the condonation application was not explained, but the court attributed this to the inaction of the applicant's legal representative and held that the applicant should not be unduly prejudiced by his attorney's neglect. The respondent's argument that the applicant, as a manager, should have known the time frames was rejected due to lack of evidence that he dealt with employment matters. The prospects of success were found to be reasonable, as the applicant alleged an unfair retrenchment process and the respondent failed to provide substantive contrary evidence. Balancing all considerations, the court held that it was in the interests of justice to grant condonation.
Obiter and limits
- The respondent's assertion that the applicant was legally represented at conciliation was not supported by the record.
- There is no reason to make a costs order in interlocutory matters where the applicant is successful.
Court disposition
Condonation granted for the late filing of the statement of claim; no order as to costs.
- The late filing of the statement of claim is condoned with no order as to costs.
Source and reliance status
Labour Court Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Johannesburg
Judgment
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JS555-19
In the matter between:
MUSA
MABASA Applicant
and
TWIN CITY DEVELOPMENT (PTY)
LIMITED Respondent
Heard: 25 May 2021
Delivered: This judgment was handed down electronically by circulation to the partiesâ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 10h00 on 27 May 2021.
Summary: Condonation
JUDGMENT
COETZEE, AJ
[1] The applicant seeks condonation for the late referral of the matter to the Labour Court. The application is opposed.
Delay:
[2] The matter remained unresolved on 28 March 2019 and the applicant referred the matter to the Court on 9 July 2019. The delay is 22 days. The application for condonation was served approximately 4 months after service of the statement of claim.
[3] It is trite law that the application for condonation must be brought when the statement of case is served. The delay that needs explanation includes the 4 months delay in bringing the application.
Explanation for the delay:
[4] The applicant explains that he was unaware of the time frames and the Rules of the Labour Court.
[5] He had difficulty in raising funds to instruct an attorney and on 23 May 2019 he visited the Legal Aid Board in Polokwane for assistance. The latter advised him that they did not assist with labour matters.
[6] On the 19th of June 2019 he visited the Polokwane Department of Labour for assistance. The department advised him to consult an attorney.
[7] The Department and Legal Aid Board failed to inform him of any time frames.
[8] He succeeded in raising funds to consult an attorney on 9 July 2019 and the statement of claim was served and filed on 9 July 2019.
[9] There is no explanation for the delay in filing the application for condonation. By that time the applicant was represented. The only reasonable assumption is that the attorney did not advise the applicant to file an application for condonation.
[10] The respondent alleges that the applicant stated in paragraph 2 that he had an attorney at the conciliation stage (the respondent refers to the "consultation stage"). I cannot find any such an allegation in the applicant's application.
[11] The respondent avers that the applicant is a Manager and that he was aware of the time period to refer a dispute and that it is unlikely that the Legal Aid Board and the Department would not assist him.
Prejudice:
[12] The applicant will be prejudiced if his case is not adjudicated. The respondent is prejudiced in the delay of the matter for 8 days.
Prospects of success:
[13] The applicant's case is that there was only one meeting between him and the respondent. At that meeting he was told that he was retrenched. The procedure was unfair.
[14] The respondent denies this and avers that the applicant did not want to attend meetings and referred the employer to his attorney. The respondent does not give any further information as to meetings he allegedly did not attend.
Analysis:
[15] The initial delay of 22 days is not excessive. The explanation is reasonable and sufficient. The respondent's reliance upon the fact that the applicant is a manager and therefor knew the time frames, is unconvincing. There is no indication that as a manager he dealt with disciplinary or employment matters at work.
[16] The applicant's explanation that the Legal Aid Board did not assist with employment matters has been disputed but no facts to the contrary have been provided. As the Legal Aid Board did not assist with employment matters, it would also be unaware of the relevant timeframes.
[17] The delay in bringing the condonation application has not been explained except that it may be attributed to the inaction of the legal representative. It cannot be said that the failure is such that the applicant cannot hide behind the neglect.
[18] The applicant alleges that the retrenchment process entailed one meeting where he was informed of his dismissal. That would be unfair if proven. The respondent disputes this but did not provide any information to the contrary.
[19] Having regard to the prospects of success and weighing up all the considerations, it is in the interest of justice to grant condonation.
Costs
[20] This is an interlocutory matter where the applicant is successful. Having regard to the relevant factors there is no reason to make a costs order.
[21] The following order is hereby made:
Order
1. The late filing of the statement of claim is condoned with no order as to costs.
F. Coetzee
Acting Judge of the Labour Court of South Africa
Appearances:
The matter has been determined on paper.
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