Masinga and Another v Utho Capital (PTY) Ltd (JS120/21) [2022] ZALCJHB 306 (2 November 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JS120/21

In the matter between:

PERTUNIA

MASINGA

First Applicant

LEBOHANG

SUSAN MOTLHABANE

Second Applicant

and

UTHO CAPITAL (PTY)

LTD

Respondent

Heard: 06 July 2022

Delivered: 02 November 2022

JUDGMENT

SASS, AJ

Introduction

[1] The Applicants sought condonation for the late referral of their statement of case to this Court as envisaged by section 191(11) of the Labour Relations Act[1] (the LRA). It appears to be common cause that the statement of case was filed sixty-five days late [i.e., that the dispute relating to the Applicants’ alleged unfair dismissal on the basis of the Respondent’s operational requirements (‘retrenchment’)].

[2] The Respondent opposed the condonation application.

Chronology of events/timeline

[3] On or about 1 April 2020, the Applicants were placed on a temporary layoff by the Respondent due to the Covid-19 pandemic and related national lockdown.

[4] On or about 5 June 2020, the Respondent issued the Applicants (and other employees) with notices in terms of section 189(3) of the LRA inviting the Applicants (and other employees) to consult with it on a number of issues in terms of section 189A as read with section 189 of the LRA. The notice invited the Applicants (and other employees) to contact and make arrangements to consult with the Respondent (on mutually agreed dates and times).

[5] By 30 June 2020, the Applicants and their representative at the time of the retrenchment process, Kylee Walker (apparently a labour consultant and not an attorney), had not made contact with the Respondent and arrangements were made then by a labour broker acting for the Respondent to hold a consultation meeting on 1 July 2020 with Applicants. The Applicants attended the consultation meeting with the Respondent on or about 1 July 2022.

[6] Correspondence was exchanged between the Respondent and the Applicants (through their representative, Walker) on 2, 7 and 8 July 2020 in respect of the consultation meeting held on 1 July 2020.

[7] On or about 8 July 2020, the Respondent issued the Applicants each with a letter for ‘Termination of Services for Operational Requirements on the 8th of July 2020’. The effective date of the retrenchment was 1 August 2020. The Applicants contend that they were dismissed on 18 July 2020. For the purposes of this condonation application, it does not matter whether the date of dismissal/retrenchment was 18 July or 1 August 2020.

[8] On or about 24 August 2020, the Applicants referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (‘the CCMA’).

[9] The CCMA issued a certificate of outcome of dispute on or about 4 September 2020 indicating that the late referral of the unfair

dismissal dispute to the CCMA had been condoned (it was six days late) and that the unfair dismissal dispute remained unresolved. The conciliating commissioner that completed the certificate of outcome of dispute ticked the box indicating ‘Refer to Arbitration’ and not the box indicating ‘Refer to Labour Court’[2].

[10] On or about 24 September 2020, the Applicants referred their unfair dismissal dispute to arbitration at the CCMA.

[11] On or about 18 November 2020, the CCMA issued a jurisdictional ruling indicating, inter alia, that the CCMA lacked the necessary jurisdiction to arbitrate the unfair dismissal dispute and that the dispute should be referred to this Court.[3]

[12] The Applicants allege that they were informed by the CCMA that they must refer their dispute to this Court within ninety days of the date of jurisdictional ruling (i.e., within ninety days of 18 November 2020).[4] The Respondent denies this allegation but provides no basis for the denial.[5] The Applicants also did not provide any details in respect of who at the CCMA had told them that they had ninety days from the date of jurisdictional ruling.

[13] The Applicants allege that: (i) they approached this Court on 19 January 2021 to file their case and for assistance pro bono but was informed that they did not meet the criteria for the means test; (ii) as they were refused pro bono assistance, they had to find a labour attorney and consulted with their attorneys of record for the purposes of the condonation

application on 29 January 2021; and (iii) the unfair dismissal case was lodged with this Court on 8 February 2021 by the Applicants’

attorneys.[6] Whilst the Respondent does not admit or deny these allegations, it does contend that the Applicants have not taken this Court into its confidence by explaining the reasons for the delay in filing the statement of claim between 19 November 2020 and 19 January 2021.[7] This is not entirely correct. I deal with this further below.

The ninety-day time period in terms of section 191(11) of the LRA

[14] It is trite that the ninety-day time period referred to in section 191(11) of the LRA commenced on the date that the CCMA issued the certificate of outcome of dispute (4 September 2020).

[15] As indicated above, the statement of claim was delivered approximately sixty-five days late. The ninety-day time period as envisaged by section 191(11) of the LRA commenced on the date that the certificate of outcome was issued (4 September 2020). The statement of claim should have been delivered on or before approximately 4 December 2020.

[16] It was common cause that the Applicants had at least referred the unfair dismissal dispute to this Court within ninety days of the date of the jurisdictional ruling (i.e., acting within the time period allegedly communicated to them by the CCMA).

Applicable legal principles - condonation

Generally

[17] The applicable legal principles are trite and well known, and the approach to be adopted by this Court is well settled. The court has a discretion in such applications, to be exercised judicially upon a consideration of all the facts, including the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case.[8]

[18] Other factors to be considered in such applications include the respondent’s interest in the finality of the matter, the convenience of the court, and the avoidance of unnecessary delays in the administration of justice.[9] Ultimately however, the standard for considering an application for condonation is the interests of justice. Whether it is in the

interests of justice to grant condonation will depend on the facts and circumstances of each case.[10]

[19] The Constitutional Court decision in Steenkamp and Others v Edcon Limited[11] in which the Constitutional Court re-affirmed that granting condonation must be in the interests of justice and in which it referred with approval to its decision in Grootboom v National Prosecuting Authority and Another[12] as follows:

“[36] Granting condonation must be in the interests of justice. This Court in Grootboom set out the factors that must be considered in determining whether or not it is in the interests of justice to grant condonation:

“[T]he standard for considering an application for condonation is the interests of justice. However, the concept ‘interests of justice’ is so elastic that it is not capable of precise definition. As the two cases demonstrate, it includes: the nature of the relief sought; the extent and cause of the delay; the effect of the delay on the administration of justice and other litigants; the reasonableness of the explanation for the delay; the importance of the issue to be raised in the intended appeal; and the prospects of success. It is crucial to reiterate that both Brummer and Van Wyk emphasise that the ultimate determination of what is in the interests of justice must reflect due regard to all the relevant factors, but it is not necessarily limited to those mentioned above. The particular circumstances of each case will determine which of these factors are relevant.

It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court’s indulgence. It must show sufficient cause. This requires a party to give a full explanation for the non-compliance with the rules or court’s directions. Of great significance, the explanation must be reasonable enough to excuse the default.

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. As a general proposition the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.”[13]

[37] All factors should therefore be taken into account when assessing

whether it is in the interests of justice to grant or refuse condonation.”

[20] As indicated above, the Constitutional Court had also already in Brummer supra pointed out that an application for condonation should be granted if it is in the interests of justice and refused if it is not. The Constitutional Court also reaffirmed that the interests of justice must be determined by reference to all relevant factors outlined in Melane supra, including the nature of the relief sought, the nature and cause of any other defect in respect of which condonation is sought, and the effect of the delay on the administration of justice[14].

[21] 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. As a general proposition, the various factors are not individually decisive but should all be taken into account to arrive at a conclusion as to what is in the interests of justice.[15]

[22] Significant with a determination of such applications is that condonation cannot be had for the mere asking, and that a party is required to make out a case entitling it to the court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay[16]. In the end, the explanation must be reasonable enough to excuse the default[17].

Reasons/explanation for the delay

[23] The explanation for the delay is that the Applicants erroneously first referred the unfair dismissal dispute to arbitration at the CCMA instead of referring it to this Court for adjudication.

[24] In Independent Municipal and Allied Trade Union on behalf of Zungu v SA Local Government Bargaining Council and others[18], the Court held as follows:

“In explaining the reason for the delay it is necessary for the party seeking condonation to fully explain the reason for the delay in order for the court to be in a proper position to assess whether or not the explanation is a good one. This in my view requires an explanation which covers the full length of the delay. The mere listing of significant events which took place during the period in question without an explanation for the time that lapsed between these events does not place a court in a position properly to assess the explanation for the delay. This amounts to nothing more than a recordal of the dates relevant to the processing of a dispute or application, as the case may be.”

[25] Both this Court and the Labour Appeal Court have previously recognized that in certain circumstances, a bona fide explanation for a delay based upon an erroneous referral to the CCMA may constitute a satisfactory explanation for the delay in a subsequent referral to this Court.[19] In this regard and in circumstances not dissimilar to the present, the Labour Appeal Court in SATAWU obo Members v South African Airways (Pty) Ltd and Others[20] stated the following:

“The uncontested explanation for the delay is that most of the period of the delay was taken up by the referral to arbitration. The remainder of the period was caused by the internal processes within the appellant in taking a decision to proceed with the claim and instructing attorneys

accordingly. Although the period is lengthy, it has been, in my view, adequately explained and it would be unfair to punish the individual employees for a process they did not have direct control. Furthermore, the condonation application was filed two days after the filing of the statement of case. The mistake made in the court a quo that it was filed after five months, has been acknowledged by that court in its judgment on the application for leave to appeal.”

Prospects of success

[26] In Gaoshubelwe and Others v Pieman's Pantry (Pty) Ltd [21] it was held that a consideration of prospects of success merely implies a determination of the likelihood or chance of success when the main case is heard.

[27] A similar approach was followed in Seatlholo and others v Entertainment Logistics Service (A division of Gallo Africa Ltd)[22] where it was held that the test is whether the Applicants would succeed in the main action if the facts pleaded by them in their

condonation application were established at trial. Equally so, the prospects of success do not entail an Applicants having to prove on a balance of probabilities that he or she would succeed when the merits of the case are heard.[23]

Evaluation and analysis

Reasons / explanation for the delay

[28] The statement of case was delivered sixty-five days late (this is common cause). This delay is not insignificant. It is not excessive though, particularly in the context of action proceedings instead of motion proceedings.

[29] The Applicants referred the dispute to this Court within what they understood to be the ninety-day time period (ninety days calculated from 18 November 2020). The ninety-day time period should of course have been calculated from the date on which the certificate of outcome was issued (from 4 September 2020). There is, however, no reason for me to conclude that through any act/s or omission/s on the part of the Applicants, that they indicated any intention on their part to abandon the unfair dismissal dispute/cause of action or waive any of their rights.

[30] The Applicants were regrettably hindered from referring the unfair dismissal dispute timeously to this Court for adjudication by two interventions beyond their control.

[31] Firstly, the CCMA’s conciliating commissioner that had completed the certificate of outcome of dispute ticked the box which indicating ‘Referral to Arbitration’ instead of ‘Referral to Labour Court’. The evidence suggests that had the conciliating commissioner ticked the box which indicating ‘Referral to Labour Court’, then the Applicants would have referred the matter timeously to this Court for adjudication.

[32] Secondly, someone at the CCMA informed the Applicants on or about 18 November 2020, after their receipt of the jurisdictional ruling, that the ninety-day time period [as referred to in section 191(11) of the LRA] commenced from the date of the jurisdictional ruling and not from the date of the certificate of outcome of dispute (4 September 2020). There is no basis for me to reject the Applicants’ version in relation to what they were told by someone at the CCMA, having regard to the evidence properly before me as contained in the parties’ respective affidavits, notwithstanding the Applicant not providing the name of the person at the CCMA who told them this or providing an affidavit from that person to confirm their version. Their version of course does not amount to hearsay evidence.

[33] The Respondent contended that the Applicants have failed to explain the reason for their delay for the entire period of 65 days, and more specifically, what happened and what they did to prosecute their matter from 19 January 2021 to date of filing the statement of claim on or about 8 February 2021. The Respondent went on to submit that the Applicants have not explained the reason for lateness for the entire period of 65 days and as such their prospects of success in the main matter is irrelevant (and therefore should not be granted condonation).[24]

[34] The period of the delay effectively has two parts. Part 1 runs from ninety days calculated from 4 September 2020 to 19 January 2021. Part 2 runs from 19 January 2021 to 8 February 2021.

[35] Whilst a detailed explanation is not provided for part 1 of the delay, a sufficiently satisfactory and bona fide explanation has been provided by the Applicants. The explanation has already been addressed above. In summary, the explanation is that the Applicants firstly erroneously referred the unfair dismissal dispute to arbitration at the CCMA instead of referring it to this Court for adjudication (because of the box ticked by the conciliating commissioner) and secondly were under the impression that the ninety-day time period for referring a dispute to this Court was to be calculated from the date on which the Jurisdictional Ruling was issued (ninety days calculated from 18 November 2020) instead of ninety-days calculated from the date on which the certificate of outcome was issued (from 4 September 2020). The Applicants did attempt to refer the dispute to this Court on 19 January 2021 and did so on 8 February 2021 – both dates within a ninety-day time period calculated from 18 November 2021, the date from which the Applicants understood the ninety-day time period commenced. The Applicants acted at all times in accordance with this understanding, albeit an erroneous one. The Applicants have therefore provided an explanation for part 1 of the delay. The explanation is reasonable and satisfactory for present purposes. No further explanation in required in respect of part 1 of the delay.

[36] Insofar as part 2 of the delay is concerned, from 19 January to 8 February 2021, a period of approximately fifteen days. The explanation for this time period has been addressed above. Within those approximately fifteen days, the Applicants were subjected to the means test (presumably by the SASLAW pro bono office at this Court, were told that they did not satisfy the criteria of the means test, had to find an attorney to assist them,

arrange a consultation with that attorney, provide that attorney with all the necessary instructions (documentary and otherwise) to draft their Statement of Claim, and provide the attorney with sufficient time to draft the Statement of Claim and file same. Whilst the above could possibly have been done with less than approximately fifteen days the period is not excessive or unreasonably long. The Applicants could possibly have provided further detail on what transpired on 19 January 2021, the steps taken to find an attorney after 19 January 2021, the communications between them and the attorney etc. There certainly is an explanation provided for part 2 of the delay and the explanation is sufficiently detailed for present purposes.

[37] The Respondent relied on National Union of Metalworkers of South Africa & Others v Malasela Taihen Electric (Pty) Ltd[25] in which Tlhotlhalemaje J held at paragraph 6 that a period of thirty-five days is excessive, albeit not in the extreme, contrasting that period of delay with the period of the delay in this matter, being sixty-five days. Importantly, the judgment pointed out that whilst the period of delay was excessive, it was not excessive in the extreme. It has been held that only where the delay is extremely or unacceptably excessive and there is no explanation for the delay, there may be no need to consider the prospects of success, and conversely, where the period of the delay is not extremely or unacceptably excessive and the explanation is not satisfactory, but there are reasonable prospects of success, condonation should be granted.[26]

[38] In my assessment and having regard to the legal principles set out above and the evidence that served before me properly construed, the explanation tendered by the Applicants, particularly where they did not have the benefit of assistance from a legal representative

subsequent to their dismissal until approximately 29 January 2021 when they consulted with their current attorneys of record for the first time, is reasonable in the circumstances.

[39] It is only where the delay is extremely or unacceptably excessive and there is no explanation for the delay, that there may be no need to consider the prospects of success. The delay in the present matter is not extremely or unacceptably excessive, and an explanation has been provided for the delay.

[40] As such, the prospects of success must be considered along with the other relevant factors.

[41] The Applicants’ allegations in relation to their prospects of success are set out in paragraphs 24, 25 and 26 of their condonation application founding affidavit. In particular, the Applicants contend that: (i) there was no need to retrench them as the Respondent still had positions available; (ii) selection criteria were not discussed; (iii) the consultation process was not a genuine and transparent attempt to engage with the Applicants and consider alternatives and selection criteria; and (iv) the consultation process was too short to be meaningful and fair.

[42] The Applicants also contended during argument that: (i) they were retrenched while others that had a shorter service period than him were not retrenched; and (ii) three consultations were held - At the first consultation the employees were told that they were going to be retrenched. At the second consultation they were told that the Respondent was going to find ways to prevent the retrenchments. At the third consultation they were told again that they were going to be retrenched and were retrenched – with the Respondent never engaging further on ways to prevent the retrenchments. Allegations to this extent were not, however, contained in the condonation application founding affidavit.

[43] For present purposes, I confine my analysis to the allegations made by the Applicants in their condonation application founding affidavit. If the Applicants can prove one or more of those allegations during the trial of the main action, then they would have some prospects of success (i.e., a chance or likelihood of success).

[44] The Respondent merely denied the Applicants’ allegations in respect of prospects of success. It did not provide any detail in respect of those denials. Importantly, the Respondent did not attach a copy of the section 189(3) notice issued to the Applicants – this was not attached to the Respondent’s condonation application answering affidavit. This notice could have provided important insight into, inter alia, whether selection criteria was discussed or considered and whether the consultation process was not a genuine and transparent attempt to engage with the Applicants and consider alternatives and selection criteria.

[45] It cannot be said that the Applicants have no likelihood or chance of success when the main action is heard when one has regard to their allegations as contained in their condonation application founding affidavit.

[46] It also cannot be said that if the facts pleaded by the Applicants were established at trial they would not succeed in the main action. For the purposes of this condonation application, the Applicants are not required to prove on a balance of probabilities that they would succeed when the merits of the case are heard.

[47] The Applicants therefore do enjoy at the very least some prospects of success, which is sufficient in the circumstances of this condonation application. The merits of the unfair dismissal dispute should proceed to trial even if they did appear to favour the Respondent on a balance of probabilities somewhat.

Prejudice

[48] The Applicants clearly intended to proceed with the main action at all times – the unfair dismissal dispute. An expeditious trial in an opposed action is unlikely. The late delivery of the Statement of Claim did not in any meaningful way delay the actual trial.

[49] There cannot conceivably be any material prejudice to the Respondent if condonation is granted. The presentation of the Respondent’s defense is also not prejudiced in any way by the short delay occasioned by the late delivery of the Statement of Claim, which should also be seen in light of the months that parties would have to wait for a trial date in any event, once pleadings have closed.

[50] The Applicants’ prejudice if condonation is not granted, namely that the merits of their unfair dismissal dispute would not be ventilated before this Court, outweighs any possible prejudice that the Respondent may suffer such as the Respondent’s legal costs occasioned by opposing the unfair dismissal dispute before this Court which the Respondent contends is opportunistic and without any prospects.

[51] If one has regard to the nature of the relief sought and has regard to the effect of the delay on the administration of justice, which is minimal in the context of awaiting a trial date once pleadings have closed, it cannot be said that the granting of condonation would not be in the interests of justice.

Conclusion

[52] The length of the delay is not unacceptably excessive or excessive in the extreme.

[53] There is also an explanation for the delay, which is reasonable, acceptable and bona fide. To the extent that the explanation provided may be lacking in some respects, a lack of an adequate explanation can be compensated by other considerations - it being trite that the factors to be considered are indeed interrelated and further the regard that must be had for the interests of justice.

[54] I am also satisfied that the Applicants has as a bare minimum shown that they have some prospects of success (and that they would succeed with the main action if the facts pleaded by them were accepted at trial) and that the granting of condonation would not materially prejudice the Respondent or prejudice the Respondent more than the Applicants would be prejudiced if condonation was not granted (i.e., the balance of convenience favours the Applicants).

[55] In all the circumstances, I am satisfied that the Applicants have established that it is in the interests of justice that condonation be granted, that there is good cause for the granting of condonation, and that a proper case has been made out for condonation.

Costs

[56] In terms of the provisions of section 162(1) of the LRA, 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.

[57] In exercising this judicial discretion, the Constitutional Court in Long v South African Breweries (Pty) Ltd and Others[27] reaffirmed the principle set in Zungu v Premier of the Province of Kwa-Zulu Natal and Others[28] 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.’

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

[59] In the premises, the following order is made:

Order

1. The application for condonation is granted.

2. There is no order as to costs.

M. Sass

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicants : Preshni Govender of PG Attorneys

For the Respondent : Marius van Niekerk of Van Niekerk Attorneys

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

[2] Applicants’ Condonation Application Founding Affidavit: Annexure ‘PM1’

[3] Applicants’ Condonation Application Founding Affidavit: Annexure ‘PM2’

[4] Applicants’ Condonation Application Founding Affidavit: Para 5.5

[5] Respondent’s Condonation Application Answering Affidavit: Para 28

[6] Applicants’ Condonation Application Founding Affidavit: Paras 5.6 and 5.7

[7] Respondent’s Condonation Application Answering Affidavit: Para 28

[8] Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).

[9] Federated Employers Fire & General Co Ltd v McKenzie 1969 (3) SA 360 (A) at 362F-G

[10] Brummer v Gorfil Brothers Investments (Pty) Ltd and others [2000] ZACC 3; 2000 (2) SA 837 (CC) at para 3

[11] [2019] 11 BLLR 1189 (CC), specifically the Constitutional Court’s second judgment.

[12] 2014 (1) BCLR 65 (CC) at para 20.

[13] Ibid at paras 22-3 and 51.

[14] Id fn 4 at para 3; See also Ndlovu v S 2017 (10) BCLR 1286 (CC) at paras 22 – 23; Van Wyk v Unitas Hospital (Open Democratic Advice Centre as amicus curiae) [2007] ZACC 24; 2008 (2) SA 472 (CC) at 477A-B; SA Post Office Ltd v CCMA [2012] 1 BLLR 30 (LAC) at para [23], where Waglay DJP (as he was then) stated that: ‘In my view, each condonation application must be decided on its own facts bearing in mind the general criteria. While the rules are there to be applied, they are not inflexible but the flexibility is directly linked to and apportioned in accordance with the interests of justice; prejudice; prospects of success; and finally, degree of delay and the explanation thereof. The issue of delay must be viewed in relation to the expedition with which the law expects the principal matter to be resolved’

[15] Grootboom supra at paras 20-23 and 51.

[16] Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited 2017 (6) SA 90 (SCA) at para 6.

[17] See: Ndlovu v S supra at fn 6 at para 31.

[18] (2010) 31 ILJ 1413 (LC) at para [13].

[19] Motloi v SA Local Government Association (2006) 27 ILJ 982 (LAC); National Union of Metalworkers of SA and Others v Crisburd (Pty) Ltd (2008) 29 ILJ 694 (LC); National Union of Metalworkers of SA and Others v SA Truck Bodies (Pty) Ltd (2007) 28 ILJ 1603 (LC).

[20] [2015] 2 BLLR 137 (LAC) at 16.

[21] (2009) 30 ILJ 347 (LC) at para 27.

[22] (2011) 32 ILJ 2206 (LC) para 24.

[23] Production Institute of Southern Africa (Pty) Ltd v CCMA and others (2011) 32 ILJ 1712 (LC) at para 12; See also SA Democratic Teachers Union v Commission for Conciliation, Mediation and Arbitration and others (2007) 28 ILJ 1124 (LC) at para 38, where it was held that; ‘A commissioner in considering prospects of success does not have to pronounce on the merits of the case. All that the commissioner needs to do is to investigate whether on the averments made by the Applicants there is a prima facie case, that there is a chance of succeeding when the main case is heard. In other words to establish whether there is a reasonable prospect of success on the merits, it suffices if an Applicants can show a prima facie case through setting out averments which, if established at the proceedings of the main case, would entitle the Applicants to some relief. The Applicants need not deal fully with the merits of the case’.

[23] Production Institute of Southern Africa (Pty) Ltd v CCMA and others (2011) 32 ILJ 1712 (LC) at para 12; See also SA Democratic Teachers Union v Commission for Conciliation, Mediation and Arbitration and others (2007) 28 ILJ 1124 (LC) at para 38, where it was held that;

‘A commissioner in considering prospects of success does not have to pronounce on the merits of the case. All that the commissioner needs to do is to investigate whether on the averments made by the Applicants there is a prima facie case, that there is a chance of succeeding when the main case is heard. In other words to establish whether there is a reasonable prospect of success on the merits, it suffices if an Applicants can show a prima facie case through setting out averments which, if established at the proceedings of the main case, would entitle the Applicants to some relief. The Applicants need not deal fully with the merits of the case’.

[24] Respondent’s Heads of Argument: para 20

[25] (JS333/15) [2017] ZALCJHB 83 (8 March 2017)

[26] Grootboom supra at para 41

[27] (2019) 40 ILJ 965 (CC) at para 30.

[28] (2018) 39 ILJ 523 (CC) at para 25.