Jojo v Element Six Production (Pty) Ltd (JS138/19) [2019] ZALCJHB 101 (15 May 2019)

/ / 2019, Labour Law, News


The Applicant was employed as a production superintendent by the Respondent. The Applicant was retrenched, and brought an application to the Labour Court for condonation for the late filing of her statement of case.  

On analysis of the prevailing jurisprudence, the Court had the discretion to condone late filling and non-compliance with court rules, which must be exercised judicially on a consideration of the facts of each case and, in essence, it is a matter of fairness to both sides.  

When looking at legislation, Section 191(11) (a) of the Labour Relations Act (LRA) prescribes a 90-day period for referral of a dispute to the Labour Court for adjudication. The 90-day period is calculated from the date a commissioner has certified that the dispute remained unresolved. The current dispute in respect of the Applicant’s retrenchment was referred more than 7 months late.  

The court was guided by the judgment of National Education Health and Allied Workers Union on behalf of Mofokeng and others v Charlotte Theron Children’s Home where the Labour Appeal Court (LAC) held that without a reasonable and acceptable explanation for a delay, the prospects of success are immaterial.  

The court viewed the dispute through the lens that, as prescribed by the LRA, all disputes must be expeditiously dealt with, and any determination of the issue of good cause must always be conducted against the back drop of this fundamental principle in employment law.

As the Applicant sought an indulgence from the Court, she bore the onus to satisfy the Court that condonation should be granted. As such, it is incumbent upon the Applicant to provide the Court with a full explanation for every period of the delay.


The Court, on analysis of the factual matrix in conjunction with the legislation and jurisprudence, dismissed the application for condonation owing to inadequate explanation in respect of lateness.

The Court reiterated that the Applicant’s contentions were inadequate and far from compelling, convincing or comprehensive. The Applicant cited many significant events which occurred during the period in question, which were unsupported by evidence or confirmatory affidavits (which evidence would have been easily obtainable) and which did not assist the Court to properly assess the reasonableness of the explanation.

Furthermore, the Court endorsed the position that the failure to provide a reasonable and acceptable explanation for the delay renders prospects of success immaterial.


This judgement highlights the importance of compliance with the stipulated legislative time periods in respect of labour law disputes. One can see that on analysis of the case, the law is designed to resolve matters expediently and to avoid prejudice. The judgment further illustrates the courts willingness to engage with the rich jurisprudential technicalities which form the backdrop to this judgment.   

Written by Ayanda  Katjitae and Charlotte Clarke

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