The LAC condoned the late application after considering the relevant principles. There were reasonable prospects of success and the interests of justice allowed the granting of condonation.
Khosa v Absa Bank Ltd (JA55/2013) [2015] ZALCJHB 1 (15 January 2015) per Dlodlo AJA (Waglay JP and Setiloane AJA concuriing)
Appeal allowed and Labour Court’s judgment set aside.
Introduction
[1] This is an appeal against the order of the Labour Court (Basson, J) handed down on 12 March 2013 in terms of which the Appellant’s application for condonation for the late referral of his dispute to the Labour Court was refused. The Respondent opposed the appeal on grounds, inter alia, that the condonation application itself is late; it is not in the interests of justice to grant condonation; and that there were no prospects of success in the main claim.
[2] By way of background, the factual matrix of this matter is as follows: The Appellant was employed by Absa Brokers (Pty) Ltd which later on changed its name to Absa Insurance and Financial Advisors (Pty) Ltd. The Appellant was dismissed from the employ of the Respondent on 29 February 2012 on the basis of the Respondent’s operational requirements. The Appellant referred an alleged unfair dismissal dispute to the Commissioner for Conciliation, Mediation and Arbitration (“CCMA”) on 20 March 2012. The certificate of outcome indicating that the dispute remained unresolved was issued on 12 April 2012.
Melane – flexible discretion for condonation
In 1962 the then highest court wrestled with when to condone court applications that were filed late or did not comply with the rules. One of giants of the court, Holmes JA, formulated an approach in his own inimitable way. It has been consistently adopted and followed. He decided that formulating a rule of thumb would only serve to harden the arteries. In the absence of any prospects of success there would be no point in granting condonation. A flexible discretion is required in deciding whether sufficient cause has been shown. The discretion must be exercised judicially after an objective overview and consideration of all the facts. There must be fairness to both sides. A piecemeal approach is incompatible with a true discretion. Ordinarily facts are not individually decisive and the following interrelated facts are relevant:
• degree of lateness,
• explanation therefor,
• prospects of success, and
• importance of the case.
Melane v Santam Insurance Company Ltd [1962] 4 All SA 442; 1962 (4) SA 531 (AD) per Holmes JA (Hoexter JA, Beyers JA, Ogilvie Thompson JA and Botha JA concurring) [Note: An in forma pauperis appeal with Adv S Kentridge appearing for the appellant.