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South Africa decisions
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Shezi v Transnet Bargaining Council and Others (D1286/2019) [2023] ZALCD 10 (24 May 2023)
Labour Court refused condonation for a late referral and dismissed the review, finding the applicant’s delay explanation unsatisfactory and excessive.
Sebloane v Commission For Conciliation, Mediation And Arbitration (CCMA) and Others (JR 300/2022) [2022] ZALCJHB 154 (5 October 2022)
The Labour Court dismissed an application for leave to appeal, finding no reasonable prospect of success and ordering the applicant to pay costs.
Department of Military Veterans v Moche and Others (JR1450/17) [2022] ZALCJHB 44 (7 March 2022)
The court found that the Bargaining Council lacked jurisdiction to arbitrate the dispute because the referral was made outside the prescribed 90-day period and no application for condonation was submitted. The commissioner erred by failing to enquire into his jurisdiction before making a retrospective award. The act or omission giving rise to the dispute occurred in July or August 2013, or at the latest June 2015, when the first respondent became aware of his right to be compensated for additional responsibilities. The 90-day period does not run from the date the employer communicates its dec…
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Nelson Mandela Bay Municipality v SAMWU obo Tolom and Others (PR190/20) [2022] ZALCPE 3 (8 February 2022)
The court found that the arbitrator committed a gross irregularity by failing to afford the applicant a hearing before deciding the condonation application, in breach of rule 31 of the Bargaining Council's rules. The right to be heard was retained under clause 7.1 of circular 7, which did not amend the requirement for a hearing, but only prohibited hearings in open venues and allowed for video conferencing. The arbitrator further erred by considering a replying affidavit filed out of time without condonation, contrary to the rules. These procedural defects prejudiced the applicant and constit…
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Gonyela and Others v Ginami Trading 36 CC (JS13/2021) [2021] ZALCJHB 324 (7 October 2021)
The court found that the applicants provided a sufficient explanation for the delay in referring their statement of claim, as they made various attempts to have the referral processed but were let down by their representative. The applicants also demonstrated good prospects of success, alleging unfair retrenchment without consultation and underpayment of severance pay. The court considered the prejudice the applicants would suffer if condonation was refused and, in the absence of opposition, granted the application for condonation.
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Standard Bank of South Africa Limited v Julyan and Others (PR196/18) [2019] ZALCPE 24 (20 December 2019)
The Labour Court reviewed and set aside a CCMA condonation ruling, holding that a 3-year, 9-month delay was inadequately explained and lacked prospects of success.
Mafumba and Others v Commission for Conciliation Mediation and Arbitration and Others (JR2880/17) [2019] ZALCJHB 253 (2 September 2019)
The Labour Court reviewed and set aside a CCMA condonation ruling after finding a genuine dispute about how the delay in referral was calculated.
Fadila v Minister of Department of Science and Technology and Another (JS1042/17) [2019] ZALCJHB 194 (6 August 2019)
The Labour Court held that the referral was not barred by undue delay and that it retained jurisdiction because the applicant alleged automatically unfair dismissal.
Khan v Commission for Conciliation Mediation and Arbitration and Others (CA3/2018) [2019] ZALAC 47 (3 May 2019)
The Labour Appeal Court upheld the refusal of condonation for a late unfair dismissal referral, finding the appellant had no acceptable explanation for the delay.
NUPSAW obo Lengs v General Secretary of the General Public Service Sectoral Bargaining Council and Others (JR2494/16) [2018] ZALCJHB 29 (1 February 2018)
The Labour Court found that the first condonation ruling by Commissioner Mello, which granted condonation for the late referral, was never formally rescinded or set aside by a competent authority. The second ruling by Commissioner Nhliziyo, which purported to revisit condonation, was issued irregularly and without jurisdiction, as no proper application for rescission was brought. However, both the first and second rulings remain on record as administrative actions, and purportedly invalid administrative acts remain enforceable until set aside by a court order. The third ruling, which refused…
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