Ngebe v Cfao Motors (Pty) Ltd t/a Buffalo Toyota Automark (PS 17/22) [2024] ZALCPE 19 (21 May 2024)

Ngebe v Cfao Motors (Pty) Ltd t/a Buffalo Toyota Automark (PS 17/22) [2024] ZALCPE 19 (21 May 2024)

The court held that, in light of recent appellate authority, the 90-day referral period in section 136(1) of the LRA applies to unfair discrimination disputes under the EEA. The applicant's referral was 33 days late, and no formal condonation application was filed. The court cannot entertain an oral condonation application; a formal affidavit is required under Rule 7. Jurisdiction is lacking absent condonation, and the matter must be removed from the roll. Costs are not awarded, as the jurisdictional issue was not raised by the respondents and fairness dictates no adverse costs order.

Citation
[2024] ZALCPE 19
Parties
Applicant: Lwandiswa Ngebe; Respondent: Cfao Motors (Pty) Ltd t/a Buffalo Toyota Automark; Respondent: Nelius Cloete; Respondent: Christiaan Mostert
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
21 May 2024
Case Number
PS 17/22
Procedural Posture
Labour Court Application / Trial Set Down; Jurisdictional Challenge Decided
Outcome
The matter is removed from the court roll due to lack of jurisdiction arising from late referral without condonation.
Judges
Thys
Legal Topics
Employment Equity Act, Unfair Discrimination, Jurisdiction, Condonation, Statutory Time Limits
Labour Law Employment Equity Act Unfair Discrimination Jurisdiction Condonation Statutory Time Limits

Case Brief

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Parties

Lwandiswa Ngebe

Applicant

Cfao Motors (Pty) Ltd t/a Buffalo Toyota Automark

Respondent

Nelius Cloete

Respondent

Christiaan Mostert

Respondent

Procedural Posture

Labour Court Application / Trial Set Down; Jurisdictional Challenge Decided

Legal Issues

  1. 1 Does the 90-day referral period in section 136(1) of the LRA apply to unfair discrimination disputes under the EEA?
  2. 2 Did the complainant comply with the statutory referral period?
  3. 3 Can the Labour Court entertain an oral condonation application for late referral without a formal affidavit?

Ratio Decidendi

The court held that, in light of recent appellate authority, the 90-day referral period in section 136(1) of the LRA applies to unfair discrimination disputes under the EEA. The applicant's referral was 33 days late, and no formal condonation application was filed. The court cannot entertain an oral condonation application; a formal affidavit is required under Rule 7. Jurisdiction is lacking absent condonation, and the matter must be removed from the roll. Costs are not awarded, as the jurisdictional issue was not raised by the respondents and fairness dictates no adverse costs order.

Court Disposition

The matter is removed from the court roll due to lack of jurisdiction arising from late referral without condonation.

Orders

  • The case is hereby removed from the court roll.
  • No ruling is made with respect to legal costs.