My employer filed their papers late in their opposition to my CCMA case, but has not applied for condonation of the late filing. What happens now?

The long answer

Just to be clear on how a notice of motion differs from an ordinary labour court case, Bean du Plessis of Baartman & Du Plessis Attorneys explains in a 2021 article that motions are adjudicated on the papers before the court. The calling of witnesses, or presenting evidence that is not in the papers, will not generally be allowed. The court will consider the case on the papers and grant an order. If there is a factual dispute between the parties, the court may either dismiss the application or alternatively, refer it to trial.

Section 159 of the Labour Relations Act, 1995 (LRA) established the Rules Board of the Labour Court. This body is given power by section 159(3) to make rules that regulate the conduct of proceedings in the Labour Court.

Court Rules 9, 10 and 12 are quoted below:

(9) Any person wishing to oppose the granting of the order prayed in the notice of motion must, within 10 days after receipt of the notice of amendment or notice that the applicant stands by its notice of motion, deliver an affidavit in answer to the allegations made by the applicant.

(10) The applicant may file a replying affidavit within five days after receipt of an answering affidavit.

So, if the employer had filed his opposing affidavit in time, or had been granted condonation for the late filing by the court, the court would allocate a date for the opposed matter to be heard. But if the employer has not asked the court to forgive its late submission of an opposing affidavit (condonation), the court may arrange for the opposed matter to be heard in the employer’s absence. The court may also make an order of costs and a schedule listing the documents relevant and necessary to the application.

But there are two further issues to be considered:

1. The Practice Manual of the Labour Court provides at Clause 11.4.2 that where the respondent or the applicant has filed its opposing or replying affidavits outside the time period set out in the rules, there is no need to apply for condonation for the late filing of such affidavits unless the party upon whom the affidavits are served files and serves a Notice of Objection to the late filing of the affidavits. The Notice of Objection must be served and filed within 10 days of the receipt of the affidavits after which time the right to object shall lapse.

If this applies to your case, it may be wise for your attorney to investigate lodging an objection to the late filing of the opposing affidavit.

2. Whether the employer can still apply for condonation for late filing of an opposing affidavit. 

The Consolidated Employers Organisation of South Africa (CEOSA) says that Rule 9 of the CCMA Rules provides for how a party can seek condonation for documents that are delivered late and not in line with required time frames. These are the issues that must be considered in granting or refusing condonation.

• The degree of lateness;

• The reasons for the lateness;

• The referring parties’ prospects of succeeding with referral or application and obtaining the relief sought against the other party;

• Any prejudice to the other party;

• Any other relevant factor.

Condonation is something which has been much discussed by the courts:

According to the Uitenhage Transitional Local Council v South African Revenue Services 2004 (SCA) case, "An application to a court for condonation of a late filing of opposing affidavit is not a mere formality and the court has to take into account the causes of the delay and its effects. If the non-compliance is time-related, the date, duration and extent of any obstacle on which reliance is placed must be spelled out."

SAFLII quotes the court as follows:

In accordance with the provisions of section 145(1)A of the LRA, this Court may on good cause shown condone the late filing of an application.

[11] The approach which the Labour Court and the Labour Appeal Court have followed in determining whether good cause has been shown, is the often referred to passage by Holmes JA in Melane v Santam Insurance Co. Ltd: 

“In deciding whether sufficient cause has been shown, the basic principle is that the court has a discretion to be exercised judicially upon a consideration of all the facts and, in essence, is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success, and the importance of the case. Ordinarily these facts are inter-related; they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion ...”

In National Union of Mineworkers v Council for Mineral Technology, the court held that “A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused.”

But, again, the courts have also said that labour disputes should be resolved quickly:

In Food and Allied Workers Union on behalf of Gaoshubelwe v Pieman's Pantry (Pty) Ltd, the Court said that there was “a particular requirement of expedition where it comes to the prosecution of employment law disputes…”

The Constitutional Court pointed out in Brummer v Gorfil Brothers Investments (Pty) Ltd that an application for condonation should be granted if it is in the interests of justice and refused if it is not.

In summary, I think you should ask your lawyer to investigate whether it is advisable (or still possible) to object to the late filing of the employer’s opposing affidavit, and whether the employer has or is applying for condonation of the late filing.

Wishing you the best,
Athalie