Mrwebi v President of Republic of South Africa and Others (JS923/2021) [2024] ZALCJHB 202 (20 May 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable

Case No: JS 923/2021

In the matter between:

SITHEMBISO LAWRENCE MRWEBI

Applicant

and

THE PRESIDENT OF THE

REPUBLIC OF SOUTH AFRICA First Respondent

THE NATIONAL PROSECUTING AUTHORITY

OF SOUTH AFRICA

Second Respondent

THE MINISTER OF JUSTICE AND

CORRECTIONAL SERVICES

Third Respondent

JUSTICE Y MOKGORO N.O.

Fourth Respondent

ADV KGOMOTSO MOROKA N.O. Fifth

Respondent

MS THENJIWE VILAKAZI N.O. Sixth

Respondent

Heard: 15 March 2024

Delivered: 20 May 2024 (This judgment was handed down electronically by emailing a copy to the parties)

Summary: Condonation application- no adequate and reasonable explanation for the excessive delay - no provision for conditional application for condonation in terms of the rules and uniform rules- Statement of Claim, not a review- no jurisdiction on matters that the LRA requires to be referred to arbitration.

JUDGMENT

SHABA, AJ

Introduction

[1] This is an opposed application in which the applicant seeks the Court’s indulgence to condone the late filing of his Statement of Claim. The late filing is not the only obstacle facing the applicant. The respondents join issue with the jurisdiction of this Court on the basis of further and several jurisdictional issues raised.

[2] The Applicant’s Statement of Claim, which is a subject matter of the condonation application herein and, which is said to have been filed in terms of Rule 6[1] of the Rules of this Court, appears to be a conundrum of action and review proceedings.

[3] The Applicant brought a “conditional application for condonation” (conditional condonation application) for the late filing of the aforementioned Statement of Claim.

[4] In the notice of “conditional application for condonation” and notwithstanding the Applicant’s claim having been brought through a Statement of Claim, and not a review, the Applicant bizarrely, prays for the following orders:

‘a. That the delay in the institution of the review proceedings is hereby condoned,

b. That failure to comply with the 180 days’ time limit in terms of section 7(1) of Promotion of Access to Justice Act, 3 of 2000, is hereby condoned,

c. That failure to comply with the provisions of section 191(6) of the Labour Relations Act, 66 of 1995, is hereby condoned.’

[5] Unconnected to the prayers in the aforementioned notice of motion and in paragraph 88 of the conditional condonation application, the Applicant requests this Court to condone the absence of the requisite authority in terms of section 191(6) of the Labour Relations Act (LRA)[2] for the delegated authority by the director of the CCMA to apparently refer his alleged unfair suspension and unfair dismissal disputes directly to this Court. Further and in paragraphs 122 and 123 of the conditional condonation application, this Court must condone the delay and/or grant extension in terms of PAJA and as well as condonation with regard to non-compliance with the provision of section 191(6) of the LRA because he is allegedly unable to get assistance and cooperation from the Bargaining Council, to have his unfair labour practice disputes relating to alleged unfair suspension and dismissal, referred directly to this Court by such council.

[6] The Applicant further qualifies and/or advances the reasons for this “conditional condonation application” by stating inter alia that: “I am advised that the decision of the Respondents in the above mentioned circumstances, are reviewable in terms of PAJA, the principle of legality, rationality, the common law, and accordingly, in the view of the undue delay rule, I am obliged, to make an application for condonation should this be raised”.[3]

[7] It may be prudent to state upfront that there is no provision for “conditional application for condonation,” in terms of either the Rules of this Court or even the Uniform Rules of the High Court.

[8] Regard being had to all the above, the Applicant’s condonation application, is bound to be considered, based on Rule 12 of this Court for all intents and purposes of this judgment.

[9] Save for confining itself to only prospects of success as a subject matter of the Applicant’s condonation application, this Court, will not pre-occupy itself much with the merits, or otherwise, of the Applicant’s case or claim, contained in the Statement of Claim.

Background facts relevant to the condonation application

[10] The facts are recorded in the parties’ papers and there is no need to burden this judgment with unnecessary repetition of the factual background from both parties’ perspectives.

[11] It may only be prudent and sufficient, for purposes of this judgment, to record the salient and pertinent facts, which are set out hereunder:

11.1 The Applicant was subjected to an enquiry in terms of section 12(6) of the National Prosecuting Authority Act, 32 of 1998 (“NPA Act”), which was chaired by a three-member panel of retired Justice Yvonne Mokgoro, Adv Kgomotso Moroka SC and Ms Thenjiwe Vilakazi (Fourth to Sixth Respondents).

11.2 The aforementioned panel of enquiry recommended inter alia that the First Respondent remove the Applicant from office as Special Director of Public Prosecution (“SDPP”)[4].

11.3 Based on the above recommendation by the panel aforementioned, the First Respondent, removed the Applicant as SDPP through letter dated 25 April 2019, with immediate effect as from 26 April 2019[5].

11.4 Parliament of the Republic of South Africa endorsed the First Respondent’s decision aforementioned in December 2019.

11.5 The Applicant, after referring unfair labour practice disputes for alleged unfair suspension and dismissal, which are said to be still pending in this Court and the General Public Service Sectoral Bargaining Council (GPSSBC), thereafter, filed a Statement of Claim, which is a subject matter of the condonation application before this Court.

Applicable legal principles

[12] Section 191(11)(a) of the LRA prescribes the 90-day time period for the delivery of Statement of Claim based on the CCMA director’s or council’s decision in terms of section 191(6) and only after the council or commissioner has certified that the dispute remains unresolved at conciliation in terms of section 191(11)(a) of the LRA. Section 191(11)(b) of the LRA specifically contemplates and permits this Court to condone non-observance of that time frame on good cause shown and only in respect of matters that are competent to be referred directly to this Court by the CCMA director or council after conciliation, which is not even the case, in this matter.

[13] In Steenkamp and others v Edcon Ltd,[6] the Constitutional Court reaffirmed that granting condonation must be in the interest of justice and it referred with approval to its decision in Grootboom v National Prosecuting Authority and Another.[7]

‘[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 the 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.[8]

[37] All factors should, therefore, be taken into account when assessing whether it is in the interests of justice to grant or refuse condonation.’

[14] In Colett v Commission for Conciliation, Mediation and Arbitration and others,[9] expounding the principles applicable when dealing with a condonation application, the Labour Appeal Court stated that:

‘There are overwhelming precedents in this Court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology, it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C–D [also reported at [1962] 4 All SA 442 (A) – Ed] should be followed but:

“(T)here is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.”’

[15] In Food and Allied Workers’ Union obo Gaoshubelwe v Pieman's Pantry (Pty) Ltd,[10] and in emphasizing the importance of expeditious resolution of disputes, the Court said the following:

‘[187] Our courts have, on occasion, pronounced on the importance of labour disputes to be conducted with expedition. For example, in National Research Foundation the Labour Court held:

“It is now trite that there exists a particular requirement of expedition where it comes to the prosecution of employment law disputes…”’

[16] There is no reply to the Third Respondent’s answer and the implications of any such non-reply are axiomatic as was held in

United Methodist Church of South Africa v Sokufundumala[11] and Ebrahim and another v Georgoulas and another.[12]

Length of delay

[17] There is no consensus by parties on precisely what the Applicant seeks condonation for and for what period.

[18] The above is so, given the convoluted content of the Applicant’s filed Statement of Claim and the disjuncture between such content and the relief and orders sought therein in comparison to those in the condonation application.

[19] The Applicant has not delivered (served and filed) any review application either in terms of PAJA or the LRA yet in its Statement of Claim, apart from seeking relief for damages and compensation[13] in such statement, the Applicant in addition, seeks inter alia, the following orders[14]:

‘a. That the decision of the 1st Respondent to authorise a disciplinary enquiry in terms of section 12(6) of the NPA Act against applicant is declared to be unconstitutional, unlawful and invalid and is reviewed and set aside;

b. That the proceedings of the disciplinary enquiry in terms of section 12(6) of the NPA Act against applicant is declared to be irregular, unconstitutional, unlawful and invalid and are reviewed and set aside;

c. That the recommendations and findings of the panel are declared unconstitutional, unlawful, irrational, unfair and invalid and are reviewed and set aside;

d. That the decision of 1st Respondent to accept the findings and recommendations of the panel is declared to be unconstitutional, unlawful and invalid and is reviewed and set aside;

e. that the decision of 1st Respondent to suspend and dismiss applicant is declared to constitute unfair labour practice and is declared to be unconstitutional, unlawful irrational, unfair and invalid and is reviewed and set aside.’

[20] The above is compounded by the fact that in the Applicant’s notice of motion for “conditional condonation application”, the Applicant seeks an order [15] that:

‘a. That the delay in the institution of the review proceeding is hereby condoned;

b. That failure to comply with the 180 days’ time limit in terms of section 7(1) of Promotion of Access to Justice Act, 3 of 2000, is hereby condoned;

[21] The Applicant’s Statement of Claim, for purposes of the condonation application at hand, cannot be considered piecemeal, in order to determine precisely what and for what period, the condonation application is sought. The Applicant has to stand and fall by his pleading based on his Statement of Claim for purposes of this Court’s consideration of his condonation application.

[22] Even If it were to be accepted that the Applicant’s application for condonation is about the late delivery (service and filing) of the Statement of Claim in relation to the alleged damages, then and in that event, such Statement of Claim for damages, ought to have been served and filed timeously and without any undue delay as soon as the Applicant became aware of the letter of the First Respondent about his immediate removal as SDPP, effective from 26 April 2019, alternatively, after the Applicant became aware of the Parliament’s endorsement of his removal by the First Respondent as SDPP in December 2019.

[23] The Applicant only served the Statement of Claim to the Respondents in November 2021 and filed it on 18 January 2022. This is almost three years after the Applicant became aware of the final decision of Parliament about his removal as SDPP by the First Respondent. Such delay is excessive.

[24] The Applicant alleges somewhere in the papers that notwithstanding having instituted action proceedings based on the Statement of Claim, relevant herein, such statement is also inter alia about a review in terms of section 158(1)(h) of the LRA[16]. The Applicant makes such a bold statement without having instituted any proper review proceedings in terms of section 158(1)(h) of the LRA serving before this Court.

[25] Even if it were to be accepted, that the Applicant, has a right to bring a section 158(1)(g) or 158(1)(h) review application, which may not be the case, then and in that event, it is now trite that such 158(1)(g) review ought to have been brought within six weeks after becoming aware of the First Respondent’s decision of 26 April 2019 to remove him as SDPP or alternatively after Parliament endorsed such decision in December 2019, then and in that event, the Applicant ought to have brought such review application, which is in any event non-existent, six weeks after April 2019 or December 2019. It is

further trite that reviews in terms of section 158(1)(h) of the LRA are equally, to be brought within reasonable time to avoid undue delays. The Applicant did not even deliver any such reviews within six weeks or within a reasonable time, as he merely served a Statement of Claim on the Respondents in November 2019 which was filed in January 2022. This is almost a three-year delay, which is excessive. Needless to mention that the Applicant has not even filed any review in this Court to date.

[26] Despite the Applicant’s convoluted content of the Statement of Claim, pointing to the contrary, the Applicant, painstakingly, wants to persuade this Court that the condonation application to be considered is only about a PAJA review, that ought to have been brought within 180 days after April 2019 or at the latest December 2019. Further that, such PAJA review, which does not even exist, as there is none such proper review before this Court, is only 31 months late.[17] Needless to state that, such alleged period of delay, even if it were to be accepted for purposes of a proper PAJA review, over which this Court may not even have jurisdiction, or for purposes of a section 158(1)(h) review, would still be excessively late.

[27] Nothing much has to turn on the fact that the Applicant inter alia, only referred an unfair dismissal dispute to the GPSSBC on 11 November 2019 after his removal by the First Respondent as SDPP on

26 April 2019, which was six months in excess of the time period for referrals to the CCMA and such council in terms of sections 191 and 136 of the LRA read together. Save for this, only having a bearing on the Applicant having had to deliver the Statement of claim serving

before this Court, by then already, which was only served in November 2021, and filed in January 2022, the delay in this regard is much of a subject matter for condonation in the GPSSBC than this Court.

[28] Regard being had to all the above, the periods of delays, that the Applicant may otherwise, want to sought condonation for, are extremely excessive and can only be condoned by this Court, if there is an acceptable and satisfactory explanation.

Explanation for the delay

[29] The Applicant’s explanation for the delay, notwithstanding the convoluted ][content of the Statement of Claim, is only confined to the undue delay principle and time limit under PAJA[18].

[30] The Applicant elected not to even allocate specific dates for the delay of almost three years and chose instead, to account

wholistically for the periods of April 2019 to December 2019, December 2019 to December 2020 and December 2020 to November 2021.

There is no explanation at all for the filing of the Statement of Claim only on 18 January 2022 at this Court.

[31] In explaining the delay between April 2019 and December 2019, the Applicant, states that he had to wait for the intervention of Parliament to finalise his removal as SDPP in terms of section 12(6)(b) and (c). The First Respondent had to notify Parliament about the Applicant’s removal within 14 days of the decisions of 26

April 2019 and the latter had 30 days to decide whether restoration had to be recommended.

[32] Parliament only finalised the matter of the Applicant’s removal as SDPP in December 2019 by endorsing the First Respondent’s decision of 26 April 2019.

[33] Nothing much has to turn on the Applicant’s referral of an unfair labour practice suspension dispute to the GPSSBC in 2018 as, that was before the First Respondent’s decision about the removal of the Applicant as SDPP as from 26 April 2019 and the finalisation thereof by Parliament in December 2019. This also goes for the review application about such suspension that is alleged to have been archived (which is denied by the Respondents). In any event, it is now trite that archiving of review applications is no longer automatic but has to either be initiated and directed by the Registrar or be applied for by a party.

[34] The Applicant further referred an unfair dismissal dispute in November 2019 to the GPSSBC even though Parliament had not, by then, finalised the process of restoration following the First Respondent’s decision about the Applicant’s removal as SDPP as of 26 April 2019. The arbitration of the Applicant’s unfair dismissal dispute is said to have been held in abeyance in the GPSSBC, pending the decision of the Labour Court on the review application by the Respondents regarding the Applicant’s suspension.

[35] The Applicant was able to refer an unfair dismissal dispute in November 2019 to the GPSSBC before the finalisation of the parliamentary process in December 2019 and yet had to wait for such finalisation from April 2019 to December 2019, without lodging the Statement of Claim serving in this Court, which was only served in November 2021 and filed in January 2022.

[36] If the Applicant’s unfair dismissal dispute is still pending in the GPSSBC, then in that event, it may not be far fetched that the Applicant is ill-advised and involved in forum shopping[19], in having delivered a Statement of Claim and the condonation application related thereto serving before this Court. Needless to

mention that there is not even a certificate, correctly so by the director of the CCMA in terms of section 191(6) or by the GPSSBC, for referral of any of the Applicant’s disputes, as referred to the GPSSBC, to this Court, under the circumstances.

[37] Based on all the above, I find the Applicant’s explanation for having not delivered, the Statement of Claim between April 2019 and December 2019, and only in November 2021 and January 2022, to be inadequate, unreasonable and unacceptable.

[38] In explaining the delay for having not filed the Statement of Claim serving before this Court between December 2019 and December 2020, the Applicant did absolutely nothing about delivering the Statement of Claim relevant herein as he waited for the outcome of the First Respondent’s review application. Such review application is about his alleged unfair suspension in 2018, long before his removal by the First Respondent as of 26 April 2019. The review in question, whether archived by then, now or not, had nothing to do with the First Respondent’s decision to remove the Applicant as SDPP.

[39] Apart from merely indicating that heads of argument were filed in July 2020 and that the review application aforementioned, was allegedly archived when the Applicant made enquiries about it in December 2020, the Applicant gives no indication of any enquiry about the review application in question between December 2019 and December 2020.

[40] Based on all the above, there is no reasonable, adequate and acceptable explanation as, to why the Applicant only served the Statement of Claim in this Court in November 2021 and filed it in January 2022 and not during the period of December 2019 and December 2020.

[41] In explaining the delay for the period from December 2020 to November 2021, the Applicant was still and as at 17 December 2020, pursuing his two unfair labour practice disputes relating to suspension and unfair dismissal through his union, the Public Servants Association, (PSA)[20] instead of delivering the Statement of Claim relevant herein.

[42] Other than referring to the filling of the Applicant’s erstwhile position of SDPP by the First Respondent in January 2021 and termination of his banking on 7 April 2021 including his attendance of such termination between April 2022 to 5 May 2021, the Applicant gives no specific day-to-day account, of what prevented him from delivering the Statement of Claim then.

[43] There is no day-to-day explanation of what the Applicant did between 5 May 2021 and 21 June 2021 when he wrote his letter of concern to the GPSSBC[21]. There is nothing before this Court that backs the Applicant’s alleged verbal enquiries.[22]

[44] There is no day-to-day explanation of what the Applicant did between June 2021 to July 2021 to deliver the Statement of Claim serving before this Court. There are no specifics about the identity of the Attorney, let alone confirmation related thereto, for the limited assistance that the Applicant alleges to have obtained including specifics on the effect that the Covid pandemic had on the Applicant.[23]

[45] There is absolutely no day-to-day explanation of precisely, what the Applicant did between July 2021 and 26 October 2021 when he requested authorisation to refer his Statement of Claim to this Court.[24]

[46] There is further no account or explanation of why the Applicant between 26 October 2021 and after having been repeatedly told on several occasions between 3 and 14 November 2021, including a letter from the GPSSBC[25] that, disputes about the alleged unfair labour practice relating to his suspension and dismissal, were still pending in Labour Court, did not deliver the Statement of Claim relevant herein.

[47] Despite having not been authorised by the director of the CCMA or GPSSBC, to deliver the Statement of Claim serving, before this Court, the Applicant, in any event, still served such statement in November 2021 and filed it on 18 January 2022 at this Court.

[48] The nature of matters for referral to this Court by the director of the CCMA or accredited bargaining councils and agencies are proscribed in terms of section 191(6) of the LRA. Needless to mention that the type of issues referred by the Applicant in the Statement of Claim serving before this Court, are somewhat ultra vires, the provisions of sections 191(6) to 191(10) of the LRA. In any event, there is not even any authorisation by the director of the CCMA or the GPSSBC that authorised the Applicant to refer issues contained in the Statement of Claim serving before this Court in terms of these sections.

[49] Instead of challenging the GPSSBC’s refusal to authorise the Applicant’s ill-advised referral of the issues contained in the Statement of Claim serving, before this Court, the Applicant effectively wants this Court “to condone the absence of such requisite authority” by the GPSSBC[26] in flagrant disregard of sections 191(6) to 191(10) of the LRA.

[50] There is no need to determine whether the Applicant proffered any explanation for the late filing of a review, either in terms of PAJA or section 158(h) of the LRA as there is no such reviews, serving before this Court, other than the Applicant’s say so, in the Statement of Claim.

[51] Provided this Court has jurisdiction, the Applicant ought to have delivered the Statement of Claim serving before this Court, without any undue delay, immediately after becoming aware of the First Respondent’s decision to remove him as SDPP as of 26 April 2019 or at the very latest, immediately after becoming aware of the Parliamentary decision of December 2019 about his non-restoration as SDPP.

[52] The Applicant only served the Statement of Claim, serving before this Court in November 2021 and filed it on 18 January 2022. There is not even, any shred of explanation for any such late filing.

[53] In South African Transport and Allied Workers Union v Algoa Bus Company (Pty) Ltd and others[27] it was held that:

‘The third respondent had an obligation to explain the full extent of the delay. It did not. It omitted essential dates and left portions of the delay unaccounted for… The absence of reasonable explanation for inordinate delay constitutes sufficient grounds for the refusal of a condonation application.’

[54] Given the non-satisfactory and unreasonable explanation for inordinate and excessive delays in not having filed the Statement of Claim timeously, condonation for the late filing thereof, has to be refused on this ground alone.

Prospects of success

[55] Regard being had to paragraphs 53 and 54 above, there is no need to consider prospects of success in the circumstances of this case.

[56] In Makuse v Commission for Conciliation, Mediation and Arbitration and others[28], it was held that:

‘[19] In short, the applicant has not demonstrated a reasonable and acceptable explanation for the egregious delay – let alone a compelling one, as is required in the circumstances of this matter.

[20] This leaves the issue of prospects of success. While an analysis of judgments of the LAC over the years reveals that it has not always consistently adopted the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial, it endorsed such a position in its recent judgment in Colett v Commission for Conciliation, Mediation and Arbitration and others [2014] 6 BLLR 523 (LAC). Significantly, this was in the context of an application to dismiss a review application for want of diligent prosecution. In an unanimous judgment, Musi AJA held as follows:

There are overwhelming precedents in this Court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of court condonation may be refused without considering the prospects of success. In NUM v Council for Mineral Technology [[1999] 3 BLLR 209 (LAC) at para 10], it was pointed out that in considering whether good cause has been shown the well-known approach adopted in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C–D … should be followed but:

‘(T)here is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

The submission that the court a quo had to consider the prospects of success irrespective of the unsatisfactory and unacceptable explanation for the gross and flagrant disregard of the rules is without merit.” (Emphasis added.)

[21] In the light of this dictum, given that the applicant has not provided a reasonable and acceptable explanation for the delay and is guilty of a flagrant and gross failure to comply with the prescribed time-period (the application being eight months late), her prospects of success are immaterial, and thus need not be considered.

[22] In the result, when subjected to the “strict scrutiny” required by the LAC in Queenstown Fuel Distributors, the application for condonation falls hopelessly short of the mark, and must fail. In the absence of the applicant having succeeded in obtaining condonation, the review application also stands to be dismissed.’ (Emphasis added)

[57] In Ngcobo NO and another v Food and Allied Workers Union[29] in particular it was held that:

‘These factors are not individually decisive but are interrelated and must be weighed against each other. In weighing these factors a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Strong prospects of success may compensate for the inadequate explanation and long delay. The Court could decline the granting of condonation, if it appears the default was wilful, or was due to gross negligence on the part of the applicant. The prospects of success or bona fide defence on the other hand, mean that all that needs to be determined is the likelihood or chance of success when the main case is heard. Without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.

(Emphasis added)

[58] In Grootboom v National Prosecuting Authority and another[30], it was held amongst others that:

‘[51] 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.’ (Emphasis added).

[59] In South African Transport and Allied Workers Union v Algoa Bus Company (Pty) Ltd and others[31] supra that:

‘[13] … With regard to prospects of success, I found the following dictum apposite:

“There are overwhelming precedents in this Court, the Supreme Court of Appeal and the Constitutional Court for the proposition that where there is a flagrant or gross failure to comply with the rules of Court condonation may be refused without considering prospects of success.”’

[60] In MEWUSA obo Mahatola and Others v F and J Electrical[32] (MEWUSA) it was also inter alia held that:

‘[13] It is also well established that without a reasonable and acceptable explanation for delay, a court may, in the exercise of its discretion, refuse condonation irrespective of the prospects of success.’

[61] The above notwithstanding, I do not believe this is a case where prospects of success warrant consideration, but even if I am wrong, for the sake of completeness, I will succinctly deal with the fact that the Applicant’s reasonable prospects of success, based on the Statement of Claim are hopeless, as hereunder.

61.1 There is no reply by the Applicant to the Respondents’ opposing affidavit to the condonation application inter alia on non-prospects of success deposed to in paragraphs 8 to 17 therein. Prospects of success for purposes of this condonation application,

stand to be accordingly determined on the Respondents’ version[33].

61.2 The Applicant relies on employment contract that is extinct for purposes of pursuing a contractual claim in terms of section 77(3) of the BCEA at the time of these proceedings.

61.3 The Applicant’s Statement of Claim is a convoluted conundrum of purported action, and review proceedings, that is ultra vires Rule 6 of this Court as well as section 158(h) of the LRA.

61.4 An Application for review not in accordance with sections 145 and 158(g) and 158(h) of the LRA, but based on legality and rationality or PAJA, remains misplaced in this Court.

61.5 There is a reason why the Rules of this Court and sections of the LRA aforementioned, make provision for distinct processes in accordance thereto. The Applicant Statement of Claim, cannot be a review and/or substitute of same, under the circumstances.

61.6 Other than the Applicant’s say so, in the Statement of Claim, there is no shred of papers for a proper review, contained in such statement, serving before this Court for adjudication.

61.7 No Applicant needs any authorisation by the director of the CCMA or bargaining council, in this case, GPSSBC, to lodge a review in terms of section 158(g) or 158(h) of the LRA in this Court.

61.8 Any decline, refusal or non-cooperation by a CCMA director or council to refer proscribed matters in terms of section 191(6) of the LRA, to this Court, stand to be reviewed and can neither be dealt with through a Statement of Claim nor be ratified or condoned by this Court.

61.9 Where condonation is not granted, this Court lacks further jurisdiction, based on that ground alone.

61.10 In addition to the above, this Court lacks jurisdiction to adjudicate unfair labour practice disputes contemplated in section 186 of the LRA that such Act, requires be referred to arbitration in terms of section 136 thereof, as was held inter alia in the authorities hereunder.

61.11 In SA Maritime Safety Authority v McKenzie,[34] the SCA said:

‘… insofar as employees who are subject to and protected by the LRA are concerned, their contracts are not subject to an implied term that they will not be unfairly dismissed or subjected to unfair labour practices. Those are statutory rights for which statutory remedies have been provided together with statutory mechanisms for resolving disputes in regard to those rights. The present is yet another case in which there is an attempt to circumvent those rights and to obtain, by reference to, but not in reliance upon, the provisions of the LRA an advantage that it does not confer.’

61.12 In Chirwa supra [35] the Constitutional Court said:

‘It is my view that the existence of a purpose-built employment framework in the form of the LRA and associated legislation infers that labour processes and forums should take precedence over non-purpose-built processes and forums in situations involving employment-related matters. At the least, litigation in terms of the LRA should be seen as the more appropriate route to pursue. Where an alternative cause of action can be sustained in matters arising out of an employment relationship, in which the employee alleges unfair dismissal or an unfair labour practice by the employer, it is, in the first instance, through the mechanisms established by the LRA that the employee should pursue her or his claims.’

[62] For the above crispy reasons but not limited thereto, the Applicant’s prospects of success with the Statement of Claim relevant herein, remains hopeless.

Prejudice

[63] The Applicant does not deal with the reasons why the Respondents will not be prejudiced by the late filing of the Statement of Claim at all. The Applicant merely makes a bold statement that “no prejudice to the administration of justice or the other litigants has been or will be caused, the person who has suffered prejudice is myself”.[36]

[64] In MEWUSA obo Mahatola and Others v F and J Electrical[37] supra, it was held that:

‘[20] I appreciate that if the applicants were ultimately successful if the matter was allowed to proceed they are being prejudiced by the proceedings been curtailed, whereas the respondent faces the prospect of defending a dismissal seven years after the event. It is an inherent risk of failing to obtain condonation for the late referral of disputes that applicants will not have their dispute ventilated before an independent forum. That is always an important consideration. However, while the LRA provides remedies for unfair dismissal those remedies must be invoked timeously. Once a party is late it should make every effort to ensure that the lateness is not prolonged. It cannot be expected that respondents must patiently wait for an indefinite period until applicants take all the necessary steps to finalise their referrals. As much as the applicants are prejudiced by forfeiting the independent adjudication of their dispute, respondents are prejudiced by the lack of timeous finality.’

[65] It is common cause, that the Applicant’s erstwhile post of SDPP, has since been filled. On the Applicant’s own version, such post was filled as far back as January 2021.

Conclusion

[66] In the result, the Court is not satisfied that the Applicant has shown good cause for the granting of condonation for the late filing of the Statement of Claim.

Costs

[67] 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 account all of the relevant facts and circumstances.

[68] The Constitutional Court has once more set the standard that the rule that costs against unsuccessful litigants automatically follow the result, is not applicable in Labour Court matters in Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and others[38] held that:

‘[24] The established rule in litigation that costs follow the result does not apply in labour matters. This Court has made that abundantly clear on a number of occasions, not least in its often-quoted decision in Zungu[39]. Despite this, however, there is now a concerning pattern of this Court being requested to overturn decisions of the Labour Court and the Labour Appeal Court applying the general rule that costs follow the result, without more, to matters before those courts. I deem it vital, then, to clarify in some detail in this judgment that it is not merely out of overzealous generosity on this Court’s part that we say that costs do not follow the result in labour matters. We are constitutionally and statutorily obliged to do so.’

[69] 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.

[70] In the premises, I make the following order:

Order

1. The application for condonation is dismissed.

2. There is no order as to costs.

S.M Shaba

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: In person

For the Respondent: Adv F J Nalane SC with Adv MH Mhambi

Instructed by:

Mr TV Letageng of the State Attorney, Pretoria

The following cases were referred to in the above judgment.

[1] Steenkamp and Others v Edcon Limited [2019] 11 BLLR 1189 (CC).

[2] Grootboom v National Prosecuting Authority and Another [2013] ZACC 37; 2014 (2) SA 68; 2014 (1) BCLR 65 (CC).

[3] Collet v Commission for Conciliation, Mediation and Arbitration and others [2014] 6 BLLR 523 (LAC).

[4] Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman's Pantry (Pty) Ltd [2018] 6 BLLR 531 (CC).

[5] United Methodist Church of South Africa v Sokufundumala [1989] 4 SA 1055 (O).

[6] Ebrahim and another v Georgoulas and another [1992] 2 SA 151 (B).

[7] Chirwa v Transnet Ltd and Others [2008] 2 BLLR 97 (CC).

[8] South African Transport and Allied Workers Union v Algoa Bus Company (Pty) Ltd [2016] 7 BLLR 711(LC).

[9] Makuse v CCMA [2015] 12 BLLR 1216 (LC).

[10] Ngcobo NO and another v Food and Allied Workers Union [2012] 10 BLLR 1035 (KZD).

[11] Grootboom v National Prosecuting Authority [2014] 1 BLLR 1 (CC).

[12] South African Transport and Allied Workers Union v Algoa Bus Company (Pty) Ltd and others.

[13] MEWUSA obo Mahatola and Others v F and J Electrical (JS1002/09) [2016] ZALCJHB 167 (26 April 2016).

[14] SA Maritime Safety Authority v McKenzie [2010] 5 BLLR 488 (SCA).

[15] Chirwa supra [2008] 2 BLLR 97 (CC).

[16] Union for Police Security and Corrections Organisation v South African Custodial Management (Pty) Ltd and others [2021] 12 BLLR 1173 (CC); (2021) 42 ILJ 2371 (CC).

[17] Zungu v Premier of the Province of KwaZulu-Natal [2018] ZACC 1; 2018 (39) ILJ 523 (CC).

[18] See also South African Commercial, Catering and Allied Workers Union and Others v Woolworths (Pty) Limited [2018] ZACC 44; 2019 (3) SA 362 (CC).

[1] GN 1665 of 14 October 1996: Rules for the conduct of proceedings in the Labour Court.

[2] Act 66 of 1995, as amended.

[3] At para 19 of the condonation application founding affidavit.

[4] At para 1142.2 of the enquiry.

[5] At para 5 of letter by the President of the Republic of South Africa.

[6] [2019] 11 BLLR 1189 (CC); (2019) 40 ILJ 1731 (CC) at paras 36 and 37.

[7] [2013] ZACC 37; 2014 (2) SA 68 (CC).

[8] Grootboom Supra at paras 22-23 and 51.

[9] [2014] 6 BLLR 523 (LAC); (2014) 35 ILJ 1948 (LAC) at para 38.

[10] [2018] 6 BLLR 531 (CC); (2018) 39 ILJ 1213 (CC) at para 187.

[11] [1989] 4 SA 1055 (O) at 1059A.

[12] [1992] 2 SA 151 (B); [1992] 3 All SA 427 (B) at 153D.

[13] At paras 7.1 to 7.4 of the Statement of Claim.

[14] At paras 7.5(a) to 7.5(e) of the Statement of Claim.

[15] Notice of motion for condonation.

[16] At para 5.3 of the condonation founding affidavit.

[17] At para 49 of ithe condonation founding affidavit.

[18] At para 47 of the condonation founding affidavit.

[19] Chirwa v Transnet Ltd and others [2008] 2 BLLR 97 (CC); (2008) 29 ILJ 73 (CC) at para 67.

[20] At para 70 of the condonation founding affidavit.

[21] Ibid at para 78.

[22] Ibid at para 79.

[23] Ibid at paras 81 to 82.

[24] Ibid at para 83.

[25] Ibid at para 87.

[26] Ibid at para 88.

[27] [2016] 7 BLLR 711 (LC) at para 12.

[28] (2015) 12 BLLR 1216 (LC); [2015] ZALCJHB 265 (LC) at paras 19 – 22.

[29] [2012] 10 BLLR 1035 (KZD); (2012) 33 ILJ 1337 (KZD) at para 17.4.

[30] [2014] 1 BLLR 1 (CC); 2014 (2) SA 68 (CC) at para 51.

[31] [2016] 7 BLLR 711 (LC) at para 13.

[32] [2016] ZALCJHB 167 at at para 13.

[33] Fn 9 and 10 above.

[34] [2010] 5 BLLR 488 (SCA); (2010) 31 ILJ 529 (SCA) in para 56.

[35] [2008] 2 BLLR 97 (CC); (2008) 29 ILJ 73 (CC) at para 41.

[36] Para 119 of the condonation founding affidavit.

[37] [2016] ZALCJHB 167 at para 20.

[38] [2021] 12 BLLR 1173 (CC); (2021) 42 ILJ 2371 (CC) at para 24.

[39] Zungu v Premier of the Province of KwaZulu-Natal [2018] ZACC 1; 2018 (39) ILJ 523 (CC). See also South African Commercial, Catering and Allied Workers Union and Others v Woolworths (Pty) Limited [2018] ZACC 44; 2019 (3) SA 362 (CC).