Article 74/2021

Labour Edge

What are the principles governing condonation applications, recently applied by the labour court in Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (2019) 30 SALLR 172 (LC)?

  1. Regarding the condonation application, the principles applicable to applications for condonation are trite, as enunciated in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).
  2. The following was said about factors that will be taken into account when considering a condonation application:

‘In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success and the importance of the case. Ordinarily these facts are interrelated, they are not individually decisive, save of course that if there are no prospects of success there would be no point in granting condonation. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate prospects which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent’s interests in finality must not be overlooked.’

  1. The court, in Melane, emphasised that any attempt to formulate a rule of thumb should be avoided. These factors are not necessarily cumulative, but are interrelated. The court or tribunal has a judicial discretion in deciding whether or not, in any given case, these factors have been canvassed (see Minister of Justice and Constitutional Development v General Public Service Sectoral Bargaining Council and Others (2017) 38 ILJ 213 (LC), at paragraphs [3]–[4]).
  2. The supreme court of appeal, in Mulaudzi v Old Mutual Life Assurance Company (South Africa) Limited 2017 (6) SA 90 (SCA), reiterated the applicable principles as follows:

‘A full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the court to understand clearly the reasons and to assess the responsibility. Factors which usually weigh with this court in considering an application for condonation include the degree of non-compliance, the explanation therefor, the importance of the case, a respondent’s interest in the finality of the judgment of the court below, the convenience of this court and the avoidance of unnecessary delay in the administration of justice.’

  1. Condonation may be refused where there has been a flagrant breach of the rules especially where no explanation is proffered (see Erasmus v Absa Bank Ltd and Others [2017] ZAGPPHC 890 (8 December 2017) at paragraph [11]).
  2. In Brummer v Gorfil Brothers Investments (Pty) Ltd and Others 2000 (5) BCLR 465 (CC); 2000 (2) SA 837 (CC), it was held that:

‘It was appropriate that an application for condonation be considered and granted if that is in the interests of justice and refused if it is not. The interests of justice must be determined by reference to all relevant factors including the nature of the relief sought, the extent and cause of the delay, the nature and cause of any other defect in respect of which condonation is sought, the effect on the administration of justice, prejudice and the reasonableness of the applicant’s explanation for the delay or defect’.

  1. In Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC); 2014 (1) BLLR 1 (CC); 2014 (35) ILJ 121 (CC), Zondo J held that:

‘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.’

  1. In NUM v Council for Mineral Technology 1999 (3) BLLR 209 (LAC), the labour appeal court restated the position that:

‘the approach is that the court has a discretion, to be exercised judicially upon consideration of all the facts, and in essence, it is a matter of fairness to both sides.’

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).