NUMSA obo Members v Macsteel Service Centres South Africa Proprietary Limited

NUMSA, on behalf of members dismissed by Macsteel, referred an unfair dismissal dispute to the Labour Court. The Statement of Case was due on 27 July 2023 but was only delivered on 13 September 2023, 48 days late. NUMSA applied for condonation. NUMSA had initially believed the dismissals were for participation in an unprotected strike, but later changed its view to misconduct dismissals that should be arbitrated by MEIBC. This view was held even after Macsteel successfully challenged MEIBC's jurisdiction. On 27 July 2023, attorneys were instructed to draft the Statement of Case which was eventually delivered on 13 September 2023 after a change in attorneys. The court initially refused condonation, finding that while the period post 27 July 2023 was adequately explained, NUMSA failed to explain the change of views regarding the reasons for dismissal before 27 July 2023. The court granted leave to appeal, but subsequently Macsteel applied for rescission on the basis that opposing submissions on leave had not been considered, and that leave should not have been granted.

• Whether the court misdirected itself in considering events prior to the expiry of the 90-day period when determining a condonation application
• Whether leave to appeal should be granted or rescinded
• Whether an applicant for condonation must explain conduct occurring before the statutory deadline when that conduct caused the delay
• Whether a party must specify in its notice of appeal whether grounds fall under section 17(1)(a)(i) (reasonable prospects) or section 17(1)(a)(ii) (compelling reasons) of the Superior Courts Act
• The applicability of the Matoto decision regarding PAJA review timeframes to Labour Court referrals

The application for rescission was dismissed. There was no order as to costs.

A party seeking leave to appeal is not required to specify in its notice whether grounds of appeal fall under section 17(1)(a)(i) (reasonable prospects of success) or section 17(1)(a)(ii) (compelling reasons) of the Superior Courts Act, as these grounds considerably overlap in most cases. The principles established in Matoto regarding the obligation to explain delays in PAJA review applications (even within the 180-day statutory period) do not apply to Labour Court referrals made within the 90-day statutory period, as there is no obligation under the LRA to bring proceedings without unreasonable delay provided they are brought within the statutory timeframe. Leave to appeal may be granted on the basis of compelling reasons where there is no Labour or Labour Appeal Court authority on an important procedural issue, even if the judge is personally unpersuaded that an error was made.

The court observed that it would be "unduly mechanistic" to require parties to indicate in their notices of appeal whether grounds fall under section 17(1)(a)(i) or 17(1)(a)(ii). The court noted that at best for Macsteel, the Matoto decision might have "some persuasive value" that the approach adopted in refusing condonation was correct, but could not be dispositive. The court suggested a practical approach to rescission applications where the key issue is whether overlooked submissions would have changed the outcome: rather than deciding rescission in isolation, it is more efficient to address the substantive issue directly and either rescind and replace the order or allow it to stand. The court noted there were no special circumstances warranting costs, implying that neither party pressed the issue of costs with conviction.

This case addresses important procedural issues in labour law litigation, particularly concerning condonation applications for late filing of Statements of Case. It clarifies that courts may grant leave to appeal on the basis of compelling reasons without requiring parties to mechanistically distinguish between "reasonable prospects" and "compelling reasons" grounds in their notices. The case also distinguishes the principles applicable to PAJA review timeframes from those applicable to Labour Court referral timeframes, confirming that no obligation exists to explain conduct during the statutory 90-day referral period. The case raises an unresolved question about whether and when courts should consider pre-deadline conduct in condonation applications, which the court identified as requiring appellate consideration given the absence of Labour or Labour Appeal Court authority on the point.