Charles Landry Boumbeyi v The Commission for Conciliation, Mediation and Arbitration and Others

Mr Charles Landry Boumbeyi was retrenched by Tarsus Distribution (Pty) Ltd on 19 June 2020. Boumbeyi claimed he referred his unfair dismissal dispute to the CCMA on 21 October 2020, but Tarsus denied receiving such a referral and there was no evidence of it in the CCMA file. A second referral form dated 2 March 2021 was received by Tarsus. The CCMA arbitrator had to consider whether to condone a delay of 211 days after the expiry of the 30-day referral period. Boumbeyi provided a summary of how he was retrenched but did not clearly explain why the dismissal was unfair, and claimed difficulty recovering provident fund contributions. Tarsus denied the retrenchment was unfair, stating there was a fair consultation process and genuine operational reasons. The review application was initially enrolled for hearing on 5 October 2023 but was struck off when neither party appeared, and was re-enrolled on 25 February 2025. At the hearing, Tarsus's legal representative was delayed due to a flight delay and arrived after the matter had been heard.

• Whether the CCMA arbitrator's refusal to condone the late referral of the unfair dismissal dispute was reviewable on the grounds of unreasonableness
• Whether an arbitrator is required to consider the prospects of success in a condonation application where there is an inordinate delay without a satisfactory explanation
• The application of the principles governing condonation applications in labour disputes
• The application of review principles, including the standard of reasonableness and the proper approach to factual disputes in motion proceedings

The review application was dismissed. No order was made as to costs.

Where there is an inordinate or very substantial delay in referring a labour dispute to the CCMA, and the applicant fails to provide a satisfactory, comprehensive explanation for the delay covering every period of the delay, it is not unreasonable for an arbitrator to refuse condonation without considering the applicant's prospects of success on the merits of the underlying dispute. An arbitrator's decision will only be set aside on review if it is one that no reasonable arbitrator could have made, based solely on the evidence that was before the arbitrator at the time of the decision.

The court made several procedural observations: (1) When reviewing an arbitrator's decision, the court can only consider evidence that was before the arbitrator, not additional evidence or explanations offered for the first time in the review application; (2) The explanation for a delay must be both comprehensive and persuasive and should cover every period of the delay - it is not sufficient simply to list significant events without explaining how they caused or contributed to the delay; (3) In motion proceedings, if an applicant fails to file a replying affidavit disputing new allegations raised in the respondent's answering affidavit, those allegations remain undisputed and will be accepted by the court (subject to the Plascon-Evans principle); (4) The expeditious resolution of labour disputes is a fundamental consideration in condonation applications; (5) Condonation is an indulgence, not a right, and the applicant bears the onus to show good cause.

This case reinforces important principles in South African labour law regarding condonation applications and review proceedings. It confirms that arbitrators are not required to consider the merits or prospects of success where there is an inordinate or very substantial delay that lacks a satisfactory explanation. The judgment emphasizes the importance of providing comprehensive, detailed explanations for every period of delay in condonation applications, and that merely listing events without explaining their impact on the delay is insufficient. It also serves as a reminder of the limited scope of review proceedings - that the Labour Court does not sit as a court of appeal but only determines whether the arbitrator's decision was one no reasonable decision-maker could have made. The case illustrates the procedural requirements in review applications, including the proper use of supplementary and replying affidavits, and the consequences of failing to utilize these procedural opportunities.