Do I need to apply for condonation if the respondent and I both filed our affidavits late and my lawyer withdrew from the case?

The long answer

The Practice Manual of the Labour Court says 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.

It is not clear from your email whether you have engaged another lawyer, or are now unrepresented, but it may be worth asking the respondent not to object to the late filing of your Review Application, as your lawyer who filed the late Review Application no longer represents you, and that you note that they have expressed the wish in their affidavit for the matter to be heard in open court.

But even if the respondent agrees not to object to the late filing of the Review Application, the court may still require you to apply for condonation. The fact that your lawyer has been suspended and that you have been left in the lurch would seem to be grounds for the court to grant condonation.

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.

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 ...”

So in summary, I would approach the court with an application for condonation on the grounds that you do not know why your lawyer, who has now withdrawn from the case, applied for the Review later than he should have, and that you have been disadvantaged by this. And you could point out that the respondent has expressed the wish in their answering affidavit for the matter to be heard in open court, so as not to prejudice anyone.

It might or might not be possible to enlist the cooperation of the respondent as well; it is certainly worth trying, but I would in any case approach the court and tell them what has happened. As the Constitutional Court pointed out in Brummer v Gorfil Brothers Investments (Pty) Ltd, an application for condonation should be granted if it is in the interests of justice and refused if it is not.

Wishing you the best,
Athalie