Blue Falcon 188 Trading (Pty) Ltd t/a Studio 88 v Commission for Conciliation, Mediation and Arbitration and Others (JA114/24) [2025] ZALAC 66 (30 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Labour Appeal Court South Africa: Labour Appeal Court You are here: SAFLII >> Databases >> South Africa: Labour Appeal Court >> 2025 >> [2025] ZALAC 66 | Noteup | LawCite sino index ## Blue Falcon 188 Trading (Pty) Ltd t/a Studio 88 v Commission for Conciliation, Mediation and Arbitration and Others (JA114/24) [2025] ZALAC 66 (30 December 2025) Blue Falcon 188 Trading (Pty) Ltd t/a Studio 88 v Commission for Conciliation, Mediation and Arbitration and Others (JA114/24) [2025] ZALAC 66 (30 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZALAC/Data/2025_66.html sino date 30 December 2025 THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG Case number: JA 114/24 In the matter between: BLUE FALCON 188 TRADING (PTY) LTD t/a STUDIO 88 Appellant and COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent MOHALE CALVIN LEBEA N.O. Second Respondent MOGAU ARON SEAKAMELA & 7 OTHERS Third Respondent Heard: 26 November 2025 Delivered:  30 December 2025 JUDGMENT MOLAHLEHI, JP Introduction [1] This is an appeal with the leave of this Court against the judgment of the Labour Court dismissing the appellant’s application for condonation for the late filing of its review application under section 145 of the Labour Relations Act [1] (the LRA).  The review concerned the arbitration award, which had found that the dismissal of the third respondent (cited in the papers as Magau Aron Seakamela and seven others), was procedurally fair but substantively unfair.  The Labour Court refused to grant condonation because it found the day delay to be excessive, the explanation inadequate, and prospects of success immaterial in the circumstances where the appellant had failed to provide a full and satisfactory explanation for the delay. Background [2] The appellant operates a nationwide chain of clothing retail stores, comprising approximately 550 stores. The third respondent are former employees of the appellant. They are cited both in the papers before the Labour Court and this Court as third respondent. They are individual employees who were part of the sales team at the Polokwane branch before their dismissal.  Their dismissal was a consequence of the disciplinary hearing, where they were accused of intentional loss or misuse of company property and of gross negligence in safeguarding the stock. I will for ease of reference refer to the third respondent as the employees. [3] The appellant proffered the above charges against the employees, contending that all members of the sales team are responsible for securing and protecting stock in their respective stores.  In this regard, he (Seakamela) and his colleagues are required, under the policy and their contracts, to conduct spot checks and report suspected misconduct related to the stock loss. [4] The appellant proffered the charges against the employees following a report by an independent stock controller who allegedly discovered significant stock losses. The number of items that went missing is estimated at roughly 300 over three months. [5] The appellant further contended that the dismissal could not be unfair because the employees, together with others, participated in the stock audit conducted by the stock controller and confirmed in writing the variances noted in the report. The Arbitration Award [6] Aggrieved by the decision to terminate their employment, the employees referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) against the appellant. The arbitration proceedings were conducted by the second respondent, the commissioner of the CCMA, who found that the dismissal was procedurally fair but substantively unfair, and ordered their reinstatement with retrospective effect. Review application [7] The appellant disagreed with the outcome of the arbitration proceedings and accordingly challenged it on review before the Labour Court.  The review was heard on 23 July 2024. The grounds for review before the Labour Court were, amongst others, that the commissioner misapplied the test for determining the onus in an application for condonation and that the commissioner's conclusion was unreasonable.  The arbitration award was issued on 24 February 2020, and the review application was served on 9 July 2020 and filed on 20 July 2020. [8] It is common cause, if not undisputed, that the appellant’s review application was filed outside the six-week timeframe prescribed by the LRA.  It attributes the delay to the COVID-19 pandemic and the government-imposed restrictions.  This is the only reason provided for the delay. [9] Before filing the review application on 20 July 2020, the appellant had earlier, in April 2020, informally filed its review application without commissioning the founding affidavit. It contended before the Labour Court that it did not incorporate a condonation application in its papers at that stage because “ the documents had already been finalised on 1 April 2020, which was well within the time for the application to be served and filed .”  It further stated that it became aware of the need to file the review application during June 2024 when the employees highlighted the issue in their heads of argument, which were filed with the Labour Court. [10] The Labour Court found that, even though the country and the court relaxed COVID-19 restrictions on 1 May 2020, the appellant served the review on 09 July 2020 and filed it only on 20 July 2020.  After considering and applying case law, the Labour Court found that the degree of lateness was excessive and that the failure to explain the delay was unreasonable and unacceptable.  It also found that the granting of condonation would not be in the interest of justice. [11] The Labour Court accordingly dismissed the appellant’s application for condonation for the late filing of the review application. Grounds of Appeal [12] The appellant’s complaint on appeal is that the Labour Court erred in finding the delay was excessive without considering the complexity of the matter, failed to weigh prospects of success against the degree of lateness properly, and that the reasons proffered for the delay were reasonable. [13] The representative of the appellant argued before this Court that the delay was minimal, considering that the founding affidavit was signed a week late. He conceded, however, that the review application did not comply with the time frame but attributed the non-compliance to administrative issues. He further argued that even though the initial filing of the application did not abide by the Rules for the Conduct of Proceedings in the Labour Court [2] (the old rules), it signified an intention to pursue the matter on the part of the appellant. [14] Regarding the prospects of success, the appellant’s representative argued that, although the manual calculation of the stock loss remained to be automated and certain pages were missing, the prospects were excellent. He, however, conceded that the loss control presented at the arbitration hearing was incomplete and that the person who compiled it was not called to testify. The respondents opposed the appeal, arguing that the delay was inordinate, unexplained, and that the appellant’s conduct demonstrates disregard for procedural rules. The issue of determination [15] The issue for determination is whether the Labour Court, in refusing to grant the appellant condonation for the late filing of its review application, exercised its judicial discretion fairly and correctly. Legal Principles [16] The procedure for filing a review application and the time limits for doing so are set out in rule 7A of the old rules.  In this regard, rule 7A provides that the review application brought in terms of section 145 of the LRA must be brought within six weeks of the applicant receiving or becoming aware of the existence of the arbitration award. However, the Court has a discretion on good cause shown to extend or ignore non-compliance with the timeframe. [17] The discretion to be exercised when considering a condonation application is a true discretion. [3] It must be exercised after considering all relevant factors, including the degree of lateness, the explanation for the delay, the prospects of success on the merits and the importance of the case. [4] [18] The broader principle governing condonation is fairness and the interests of justice. In Grootboom v National Prosecuting Authority and Another [5] the Constitutional Courts held that the interests of justice may justify excusing non-compliance with prescribed timeframes. [19] In Aspen Holdings (Pty) Ltd v Phelane and Another , [6] this Court confirmed that it will only interfere with the Labour Court’s exercise of discretion if it is shown to be capricious, based on wrong legal principles, affected by bias or mala fides , or exercised without proper reasoning, misdirection, or failure to consider relevant factors. [20] It is now well established that a reasonable and acceptable explanation for the delay is not merely a factor but a threshold requirement. If this threshold is not met, the court will refuse condonation without considering prospects of success. In Groenewald and another v National Transport Movement, [7] the Court aptly held: “ Without a reasonable and acceptable explanation for a delay, the prospects of success are immaterial.” [8] . Discussion [21] The evaluation of the facts and the circumstances of this case reveals that the appellant failed to establish a basis for this Court to interfere with the Labour Court’s exercise of its discretion in refusing condonation for the late filing of the review application.  The Labour Court correctly calculated the delay and excluded the hard lockdown period from its assessment.  Even after this exclusion, the delay amounted to 66 days, which was not satisfactorily explained. [22] The appellant’s only explanation was that it became aware of the need for condonation when the issue was raised in the employees’ heads of argument before the Labour Court.  This is clearly negligent, as the rule governing the period for filing a review application has been well-known and established since 1996. [9] Furthermore, the condonation application was filed on 27 July 2024, four years after the issue was brought to its attention. The additional delay was also not explained. This means there is no explanation for this significant delay.  The application itself was dated 26 June 2023, but was inexplicably filed a year later, on 27 June 2024. [23] In these circumstances, the Labour Court correctly held that the appellant failed to show good cause for the excessive delay. Accordingly, prospects of success were immaterial.  In this regard, the Constitutional Court in Grootboom , [10] held that condonation is not a mere formality, the party seeking the court’s indulgence must make out a proper and sufficient case through the provision of a full and reasonable explanation for the non-compliance with the prescribed timeframes. [24] Even if prospects of success were considered, the application would still have failed.  The prospects of success were abysmal when regard is had to the concession made by the appellant that the report on the loss of stock upon which it relied in seeking the dismissal of the employees was incomplete. On its own version, certain pages of the reconciliation were missing.  Furthermore, the person who compiled the report was not called to testify regarding the report for no apparent reason. Costs [25] It is well established that the general civil law principle that costs follow the result does not automatically apply in labour matters. Section 162 of the LRA requires the court to exercise its discretion judicially, taking into account the requirements of law and fairness. In determining whether to award costs, the court must consider, among other factors, the parties' conduct in instituting or defending the proceedings. [26] In the present matter, there is no reason why costs should not be awarded against the appellant. The appellant was assisted by an expert in labour matters. It proceeded to institute both the review application before the Labour Court and the present appeal, notwithstanding clear evidence showing good cause for the late filing of the review.  This conduct was unjustified and unfair, and served only to unnecessarily prolong the litigation. In the circumstances, the disregard of the basic legal principles and rules governing the time frame for the filing of a review application warrants a cost order. [27] Accordingly, in terms of section 162 of the LRA, it is appropriate that the appellant be ordered to pay the costs of these proceedings. [28] In the premise, the following order is made: Order 1. The appeal is dismissed. 2. The appellant is ordered to pay the costs of the appeal. E M Molahlehi Judge President of the Labour Appeal Court of South Africa Djaje AJA and Kganyago AJA concur. APPEARANCES: For the appellant:                        Guardian Employers Organisation. For the third respondent:             Adv M.J. Mailula, instructed by Babili K.M. Attorneys Incorporated. [1] Act 66 of 1995, as amended. [2] Now repealed and replaced with Rules Regulating the Conduct of the Proceedings of the Labour Court (GN 50608). Effective 17 July 2024. [3] See: NTEU obo Moeketsi v CCMA and Others (JR1157/20) [2022] ZALCJHB 226 (16 August 2022) at para 33; Eskom Holdings Soc Ltd v CCMA and Others [2025] ZALCJHB 313 at para 6 and Solidarity obo Taljaard v Assmang Ltd and CCMA (JR170/24) [2025] ZALCJHB 313 (8 July 2025) at para 21. [4] See: Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532C-F , NUM v Council for Mineral Technology [ 1999] 3 BLLR 209 (LAC) at para 10 and Grootboom v National Prosecuting Authority and Another [2013] ZACC 37 ; 2014 (2) SA 68 (CC); 2014 (1) BCLR 65 (CC); [2014] 1 BLLR 1 (CC); ( 2014) 35 ILJ 121 (CC) ( Grootboom ) at para 50. [5] [2014] 1 BLLR 1 (CC) at paras 22 and 50. [6] [2025] ZALAC 4 ; [2025] 4 BLLR 409 (LAC) at para 17. [7] (JS805/20) [2024] ZALCJHB 35 (5 February 2024) at para 3. [8] See also: NUM v Council for Mineral Technology (Id fn 4) and NEHAWU obo Mofokeng v Charlotte Theron Children’s Home (2003) 24 ILJ 1572 (LC); [2003] 8 BLLR 781 (LC) at para 27 . [9] See: Rules for the Conduct of Proceedings in the Labour Court Government. GN 1665 in GG 17495 of 1996. [10] Grootboom (id fn 5) at para 23. sino noindex make_database footer start