South Africa Judgment

Labour Court Johannesburg

Mokwalase v Finovest Business Accountants (JS449/21) [2021] ZALCJHB 444 (9 December 2021)

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Source document

01

Holding and result

The applicant failed to provide a proper explanation for the five-month delay in referring her dispute to the Labour Court, offering only a general account of her actions and no substantive justification for the period that elapsed. Furthermore, the applicant did not substantiate her claim of unfair dismissal beyond a bare assertion, and the respondent's evidence indicated that she absconded rather than being dismissed. The court found that the application lacked both a satisfactory explanation for the delay and any real prospects of success in the main action. Consequently, condonation for the late referral was refused.

Court disposition

Condonation for the late referral is refused.

Orders

  • Condonation is refused.
  • There is no order as to costs.

02

Material facts

Parties

Keitumetse Lucia Mokwalase

Applicant Counsel: Ms P Govender

Finovest Business Accountants

Respondent Counsel: Mr H Wissing

03

Procedural history

  1. Posture

    Condonation Application / Application for Condonation for Late Referral to Labour Court

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant explained that her matter was set down for arbitration on 31 March 2021, where the CCMA ruled it lacked jurisdiction and advised her to refer the matter to the Labour Court within 90 days. She approached the Labour Court on 18 May 2021 and sought assistance from SASLAW pro bono offices, believing she was within the prescribed timeframe. She asserted her intention to pursue the matter and claimed her dismissal was procedurally and substantively unfair, stating she was verbally informed of retrenchment due to company difficulties.
Respondent
The respondent opposed the condonation application, arguing that the applicant was not dismissed but rather absconded from her workplace and never returned. The respondent maintained that there were no prospects of success in the main action and that the applicant failed to provide a proper explanation for the excessive five-month delay.

05

Court’s reasoning

  1. 01

    Labour Court jurisprudence

    A party seeking condonation must provide a proper explanation for the delay and demonstrate prospects of success in the main action.

  2. 02

    Labour Court practice

    The court must be placed in a position to exercise its discretion regarding condonation, which requires sufficient detail on both explanation and prospects.

06

Ratio, limits and disposition

Ratio decidendi

The applicant failed to provide a proper explanation for the five-month delay in referring her dispute to the Labour Court, offering only a general account of her actions and no substantive justification for the period that elapsed. Furthermore, the applicant did not substantiate her claim of unfair dismissal beyond a bare assertion, and the respondent's evidence indicated that she absconded rather than being dismissed. The court found that the application lacked both a satisfactory explanation for the delay and any real prospects of success in the main action. Consequently, condonation for the late referral was refused.

Obiter and limits

  • A party seeking condonation must place the court in a proper position to exercise its discretion, which requires more than a bare assertion of prospects of success.
  • Even if condonation were granted, the absence of substantive prospects of success would be fatal to the applicant's case.

Court disposition

Condonation for the late referral is refused.

  • Condonation is refused.
  • There is no order as to costs.

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 444

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JS 449/21

In the matter between:

MOKWALASE,

KEITUMETSE LUCIA Applicant

and

FINOVEST

BUSINESS ACCOUNTANTS Respondent

Heard: 19 October 2021

Edited: 09 December 2021

JUDGMENT – EX

TEMPORE

MOSHOANA, J

[1] Unlike the matter that was before Court earlier, what serves before Court is an application for condonation for the late referral of a dispute to this Court. The delay is that of five months, which both counsels agreed it is excessive and required a proper explanation.

[2] What the Court gleaned from the founding affidavit is that the applicant stated the following as the reasons for the delay. Her matter was set down for arbitration on 31 March 2021. A ruling was issued that the CCMA lacks jurisdiction and she should refer the matter to the Labour Court. She was informed that there was 90 days period to make a referral.

[3] She came to the Labour Court on 18 May 2021, applied for a case number and went to SASLAW pro bono offices for further assistance. At that time, she believed that she was still within the prescribed timeframe. She had no idea as to whether she has been incorrectly advised. It has always been her intention to pursue the matter. Other than the above explanation, there was no explanation for the five months’ period that went past. Clearly there is no proper explanation, as required.

[4] With regard to the prospects of success, only one paragraph was dedicated to that. The applicant simply states:

“My prospects of success in the main action are good. My dismissal was procedurally and substantively unfair. I was just told verbally that the company is not doing well and must retrench two people.”

[5] That is the full extent of the prospects of success outlined in this application.

[6] A party seeking condonation must at least place the Court in a proper position to exercise its discretion. There is no indication why the applicant believes that at least the dismissal is procedurally and substantively unfair. However, in opposing the referral or the condonation application, it was made clear that she was not dismissed. It was testified that she absconded her workplace and never returned. Therefore, even if this Court were to grant condonation, this is one of those cases that lack prospects of success. For all the above reasons, condonation for the late filing must fail.

[7] In the result the following order is made:

Order

1. Condonation is refused.

2. There is no order as to costs.

Graham Nasious Moshoana

Judge of the Labour Court of South Africa

Appearances:

For the applicant : Ms P Govender of PG Attorneys

Instructed by : Pro Bono Saslaw Offices

For the respondent : Mr H Wissing of Henk Wissing Inc.

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Authorities

Authorities used by the court

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

Labour Relations Act 66 of 1995

Legislation

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