Condonation Application Procedure

Understanding the Condonation Application Procedure under South African Labour Law

The Condonation Application Procedure is a formal process by which a party seeks forgiveness or legal pardon for failing to comply with prescribed timeframes set out in the Labour Relations Act, 1995 (“LRA”). This procedure is essential in cases of late referrals to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) or the Labour Court. Where time limits are missed, such as in the filing of a statement of case or a referral form, condonation must be applied for to proceed with the matter.

The LRA is stringent in upholding procedural fairness and certainty, and thus, any late filing without condonation is likely to be dismissed outright. The foundation of any successful condonation application lies in demonstrating “good cause,” a term embedded in both statute and case law.

The Legal Framework: Labour Relations Act Section 191 Condonation

Section 191(1)(b)(ii) and (2) of the LRA prescribes time periods for unfair dismissal or unfair labour practice referrals to the CCMA. If a party fails to comply with these deadlines, Section 191(2) allows for an application for condonation.

Section 191(2) states:

“If the employee shows good cause at any time, the Commission may permit the employee to refer the dispute after the relevant time limit has expired.”

This provision forms the legal gateway to the Condonation Application Procedure.

When to Bring a Condonation Application

A condonation application must be filed as soon as a party becomes aware of their non-compliance with statutory timeframes. Typical scenarios include:

• CCMA referral late submission beyond the 30-day period for unfair dismissal cases.
• Late filing condonation Labour Court applications, where pleadings or review applications are out of time.

In all these instances, the application should accompany the late document (e.g., referral form or statement of case) and be served on the opposing party.

The “Good Cause” Threshold in the Condonation Application Procedure

The term “good cause” is not defined in the LRA, but case law has shaped it into a substantive and flexible standard. The most cited case is Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A), where the Appellate Division outlined a four-factor test:

1. The degree of lateness;
2. The explanation for the delay;
3. The prospects of success in the main case;
4. The importance of the case.

The Labour Court reinforced this standard in NUM v Council for Mineral Technology [1999] 3 BLLR 209 (LAC), noting that all four factors must be considered holistically.

Drafting an Affidavit for Condonation Template: Structure and Content

An affidavit supporting a condonation application must be clear, concise, and persuasive. It should include:

• Heading in accordance with Rule 7 of the CCMA Rules or Labour Court Rules.
• Introductory paragraph stating the purpose of the affidavit.
• Chronology of events explaining when the applicant became aware of the need to file and why the deadline was missed.
• Explanation of delay, which must be full and detailed.
• Prospects of success, arguing the merits of the underlying case.
• Prejudice, explaining how the other party is not unduly prejudiced.

An affidavit for condonation template may also include annexures such as correspondence, internal grievance records, or medical reports to support the explanation for lateness.

Case Law Illustrating the Condonation Application Procedure

In Toyota South Africa Motors (Pty) Ltd v CCMA and Others [2016] 3 BLLR 217 (LAC), the Labour Appeal Court emphasized that prospects of success carry significant weight. Even a short delay may not be condoned where the case lacks merit.

In Khosa v CCMA and Others [2004] 9 BLLR 864 (LC), the Court held that a three-month delay was unreasonable, and the applicant’s vague explanation failed to meet the “good cause” standard.

However, in Allround Tooling (Pty) Ltd v NUMSA and Others [1998] 8 BLLR 847 (LAC), a delay of over a month was condoned due to compelling reasons and strong merits.

Strategic Considerations

Practitioners must ensure the condonation application is made promptly and is comprehensive. Common pitfalls include:

• Submitting a mere covering letter without a formal affidavit.
• Providing insufficient detail about the reasons for delay.
• Relying solely on the applicant’s ignorance of the law.

Strategically, the application should balance full disclosure with persuasive legal argument, always referencing relevant case law and statutory provisions.

The Role of the CCMA and Labour Court in the Condonation Application Procedure

The CCMA has discretion under Rule 9(3) of its Rules to grant condonation for late referrals. Similarly, Rule 12 of the Labour Court Rules allows the Court to condone non-compliance if “good cause” is shown.

Both forums assess condonation through the lens of fairness and justice. Yet, they are cautious not to undermine procedural timelines, ensuring that litigants are not lax in their duties.

Remedies Following a Rejected Condonation Application

Where the Condonation Application Procedure is unsuccessful, the applicant may:

• Request a written ruling and consider judicial review in the Labour Court (if the ruling is reviewable under Sidumo v Rustenburg Platinum Mines Ltd [2007] 12 BLLR 1097 (CC)).
• Seek legal advice on instituting fresh proceedings, if permissible.

Practical Guide for Condonation Applications at CCMA or Labour Court

• Always identify the missed deadline.
• Gather all documents supporting the explanation.
• Use a structured affidavit for condonation template.
• File and serve the affidavit and application together with the late pleading.
• Prepare for oral argument if necessary.

Frequently Asked Questions About the Condonation Application Procedure

What is the condonation application procedure?

It is a legal process by which a party asks the CCMA or Labour Court to excuse a delay in filing a document required under the LRA.

When must I file a condonation application?

As soon as you realise the deadline has been missed, and preferably at the same time as the late filing.

What counts as “good cause for condonation application”?

Good cause includes a reasonable explanation for the delay, strong prospects of success, and lack of prejudice to the other party.

Can I use illness as a reason for delay?

Yes, provided there is supporting documentation like medical certificates.

How long is too long for a delay?

There is no fixed period, but longer delays require stronger justifications.

What happens if the condonation application is rejected?

Your main case may be struck out or dismissed. You may consider judicial review if grounds exist.

Must I use a lawyer for the condonation application?

Not legally required, but strongly recommended due to the technical nature of these applications.

Is there a form for CCMA referral late submission?

Yes, but it must be accompanied by a detailed affidavit requesting condonation.

Can I refile a case if condonation is denied?

Only if the cause of action still exists and the time limits allow. Legal advice is essential here.

Do I need to notify the other party?

Yes, you must serve the application on the other party and provide proof of service.

References

Case / Law	Citation	Importance
Melane v Santam Insurance	1962 (4) SA 531 (A)	Established the key factors for “good cause.”
NUM v Council for Mineral Technology	[1999] 3 BLLR 209 (LAC)	Applied Melane test in labour context.
Toyota SA Motors v CCMA	[2016] 3 BLLR 217 (LAC)	Emphasized importance of merit in condonation.
Khosa v CCMA	[2004] 9 BLLR 864 (LC)	Rejected vague explanations for delay.
Allround Tooling v NUMSA	[1998] 8 BLLR 847 (LAC)	Condoned delay where merits were strong.
Labour Relations Act	Act 66 of 1995	Statutory basis for condonation and time limits.
CCMA Rules	Rule 9(3)	Governs late referrals and condonation.
Labour Court Rules	Rule 12	Governs late filings in Labour Court.

Useful Links

CCMA Official Website Provides official forms, rulebooks, and referral guidelines including for late submissions.

SAFLII – Southern African Legal Information Institute Access to full case law and statutes cited in this article.

Department of Employment and Labour Policy guidance and access to regulations under the Labour Relations Act.

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