Othusitse Isop Seleke v Commission for Conciliation Mediation and Arbitration and Others

The applicant was dismissed by the third respondent (Little Green Beverages (Pty) Ltd). Following arbitration proceedings before the CCMA under reference GAEK9209-16, the second respondent issued an arbitration award on 26 March 2017 finding the dismissal to be fair. The applicant's union (FAWU) received the award by fax on 28 March 2017. The applicant alleged the union took instructions to review the matter, and he believed the matter had been referred to the Labour Court. A month later he discovered it had not been referred. He then approached his insurance company who appointed an attorney. The review application was only served on 19 October 2017, approximately five and a half months late. The applicant collected the audio recording on 4 December 2017, submitted it to transcribers, and the transcribed record was only served on 30 November 2018, approximately 8 months late.

• Whether condonation should be granted for the late filing of the review application (approximately 5.5 months late)
• Whether condonation should be granted for the late filing of the transcribed record and supplementary affidavit (approximately 8 months late)
• Whether the review application should be re-instated after being deemed withdrawn under the Practice Manual
• What constitutes a reasonable and acceptable explanation for delay in review applications
• The application of the principles for granting condonation in labour law matters

1. The application for condonation for the late filing of the review is dismissed with no order as to costs. 2. The review application is in any event deemed to have been withdrawn and the application to re-instate (or condone) the review application is dismissed with no order as to costs. 3. The Court does not have jurisdiction to entertain the review application and the application is struck from the roll.

The binding legal principles established are: (1) In review applications challenging arbitration awards, more stringent standards apply to condonation applications - the explanation must be compelling and prospects of success must be strong. (2) Without a reasonable and acceptable explanation for delay, the prospects of success are immaterial and condonation must be refused. (3) An applicant seeking condonation bears the onus to provide a detailed, comprehensive explanation accounting for all periods of delay with specific dates and reasons. (4) When evaluating prospects of success in condonation applications, it is insufficient to make bald statements; the applicant must substantiate the averment and explain why the impugned award is reviewable. (5) Under the Practice Manual, when a transcribed record is not filed within 60 days, the review application is deemed withdrawn and dismissed, requiring an application for re-instatement. (6) All employment law disputes must be expeditiously dealt with (as confirmed by the Constitutional Court in Toyota SA Motors v CCMA), and determinations of good cause for condonation must be conducted against this fundamental principle.

The Court made observations that although the review application was doomed from the start, it was not a matter where a costs order was appropriate. The Court accepted the applicant's explanation for non-compliance with the registrar's directive to file heads of argument, indicating some flexibility on procedural matters where reasonable explanations are provided promptly. The judgment also implicitly commented on the adequacy of legal representation, noting that an experienced union like FAWU would have been aware of the six-week time limit, casting doubt on the applicant's claim of ignorance about time constraints.

This case reinforces the strict approach South African courts take to condonation applications in labour law matters, particularly in review applications. It emphasizes: (1) The constitutional and statutory imperative of expedition in employment disputes; (2) The heightened requirements for condonation in review applications compared to other matters - explanations must be compelling and prospects of success must be strong; (3) The importance of providing detailed, dated explanations for every period of delay; (4) That bland, unsubstantiated assertions regarding prospects of success are insufficient; (5) The operation of the Practice Manual provision that deems review applications withdrawn when the record is not filed within 60 days; (6) That condonation is an indulgence, not an entitlement, and applicants bear the onus to establish good cause. The judgment demonstrates the practical consequences of failing to comply with procedural time limits and the difficulty of obtaining condonation without a comprehensive, compelling explanation.