Charl Schaanick v Blurock Quarries (Pty) Ltd and Others

The applicant, Charl Schaanick, sought to review a ruling by the second respondent (CCMA commissioner Sizwe M Ngubane) refusing him condonation for the late referral of his unfair dismissal dispute to the third respondent (the CCMA). The ruling was dated 11 November 2021 and signed on 9 December 2021. The applicant alleged that he received the award by email ‘on or about February 2022’. He launched his review application on 26 October 2022, which was out of time, and simultaneously applied for condonation for the late initiation of the review. The first respondent (Blurock Quarries) raised a preliminary point that the condonation application had not been served on it. The applicant’s service affidavits asserted that both the review and condonation applications were served by email on 26 October 2022, but the deponent did not telephonically confirm receipt, and the email purportedly sent to the first respondent did not reflect the condonation application as an attachment. In his condonation application, the applicant explained that after receiving the award he approached an attorney in Estcourt, and thereafter his legal insurers (‘Europe Assist’ / ‘Legal Assist’), and ultimately attorneys in Pietermaritzburg. He attributed much of the delay to a lack of funds to travel the 110 km from Estcourt to Pietermaritzburg to consult his attorneys. He met his attorneys on or about late July 2022, and again on 29 September 2022, when he received draft affidavits by email on 30 September 2022. He did not explain why he only signed the affidavits on 19 October 2022. He alternately asserted that his prospects of success were ‘good’ and ‘excellent’ without providing any basis. In the underlying ruling, the commissioner had found that although the applicant claimed a two-day delay, the referral forms were signed on 22 July 2021 but only submitted to the CCMA on 14 October 2021, making the delay excessive and unexplained; the commissioner therefore refused condonation without considering prospects of success.

• Whether the applicant established proper service of the condonation application on the first respondent, and what the consequence of any defective service would be.
• Whether the applicant satisfied the requirements for condonation by providing sufficient particulars regarding the length of the delay, the reasons for the delay, and the prospects of success in the underlying review.
• Whether the applicant’s reliance on financial constraints to justify not travelling to consult his attorneys constituted a reasonable excuse, particularly where the review was paper-based and could be prosecuted remotely.
• What standard applies when a court reviews a lower tribunal’s discretionary refusal of condonation, and whether the applicant demonstrated any likelihood of success on review.

Condonation for the late initiation of the review application is refused. There is no order as to costs.

An applicant seeking condonation for the late filing of a review application must place sufficient facts before the court to enable it to conclude that the interests of justice require the indulgence. This requires sufficient particularity as to the length of the delay, the reasons for the delay, and the prospects of success; vague and unsubstantiated allegations are insufficient. Financial constraints do not constitute a valid reason for delay in circumstances where the applicant could reasonably have consulted attorneys and prosecuted the matter remotely using electronic or virtual means. A reviewing court will not interfere with a lower tribunal’s discretionary refusal of condonation unless the tribunal failed to exercise its discretion judicially, was influenced by wrong principles or a misdirection on the facts, or reached a decision that no reasonable tribunal properly directing itself to the relevant facts and principles could have reached.

The court observed that the only possible outcome of a failure to establish service of the condonation application would be the striking off of that application, and not the dismissal of the underlying review application itself. The court commented that, whilst not unsympathetic to the issue of financial constraints generally, such constraints did not impede the applicant in this instance given the possibility of remote engagement. Additionally, the court noted that the first respondent’s answering affidavit in the condonation application would merely have addressed issues already raised by its counsel in argument, and therefore no point would be served by delaying the matter further.

The judgment reinforces the stringent requirements for condonation applications in the Labour Court, emphasising that applicants must provide detailed, particularised, and substantiated evidence regarding the length of delay, the reasons for the delay, and prospects of success. It demonstrates that financial constraints will not excuse delay where modern electronic communication permits remote consultation and prosecution of a paper-based review. It also reaffirms the narrow scope of review of a lower tribunal’s discretionary decision to refuse condonation, applying the standard articulated by the Constitutional Court in National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC).