Andries Bouwer v Supreme Pets CC and Others

The applicant was dismissed for theft on 7 February 2017. His attorneys lodged an appeal on 16 February 2017 (after the 5 working day deadline but this was not formally communicated to him). The first respondent considered and dismissed the appeal on 17 February 2017, but this outcome was never formally communicated to the applicant despite repeated requests. The applicant referred an unfair dismissal dispute to the CCMA on 13 March 2017, was advised to apply for condonation, which was ruled defective on 20 July 2017. The applicant re-referred the dispute on 20 July 2017 with a new condonation application. The second respondent dismissed the condonation application on 9 November 2017, finding the applicant was 21 days late. The applicant launched this review application on 23 January 2018 without a condonation application for the late filing.

• Whether the 30-day period for referring an unfair dismissal dispute runs from the date of initial dismissal or from when the employee is advised of the final decision on appeal
• Whether the review application was filed within the prescribed time limits under section 145(1) of the LRA
• Whether the Court has jurisdiction to hear the review application absent a condonation application
• Whether a costs order de bonis propriis against the applicant's attorneys is appropriate

The review application was dismissed with costs for lack of jurisdiction. The applicant's attorneys were ordered to deliver an affidavit within 30 days explaining why they should not be ordered to pay the applicant's costs de bonis propriis on an attorney and own client scale. In the absence of a satisfactory explanation, the attorneys would be ordered to pay such costs.

The binding legal principles established are: (1) In terms of section 191(1)(b)(i) of the LRA, the 30-day period for referring an unfair dismissal dispute to the CCMA runs from the date the employee is informed that an internal appeal was unsuccessful, not from the date of initial dismissal; (2) A review application under section 145(1) of the LRA must be brought within 6 weeks of the date the award was served, and condonation for late filing may only be granted on good cause shown under section 145(1A); (3) The court lacks jurisdiction to consider a review application filed outside the prescribed time limits in the absence of a condonation application demonstrating good cause; (4) The date of referral to the CCMA is the date the referral papers are properly filed at the CCMA, not the date they are served on the employer.

The Court made observations about the conduct of the applicant's attorneys, noting it was 'inconceivable' that the same firm served the referral late and then launched review proceedings substantially out of time without a condonation application or attempt to explain the delay. The Court commented that it would be unfair to burden the applicant with costs given the conduct of his attorneys, and noted that costs de bonis propriis are awarded against legal practitioners in cases involving 'serious delinquencies such as dishonesty, wilfulness or negligence in a serious degree.' The Court also observed that while section 158(1)(g) reviews have no statutory time limit, they must be launched within a reasonable time, which has been held to be six weeks, and the delay in this case was unreasonable.

This case clarifies important procedural aspects of labour law disputes in South Africa. It reinforces the principle established by the amendment to section 191(1)(b)(i) of the LRA that the 30-day period for referring unfair dismissal disputes runs from when the employee is informed of the final decision on appeal, not from the initial dismissal date. This protects employees from being prejudiced by delayed internal appeal processes. The case also demonstrates the strict approach courts take to compliance with time limits under section 145(1) of the LRA for review applications, and the requirement for condonation applications with adequate explanations for delays. Additionally, it illustrates when courts will consider costs orders de bonis propriis against legal practitioners for serious negligence, serving as a warning to attorneys about their professional obligations and the consequences of failing to properly manage procedural requirements.