CCMA Condonation Guide

CCMA Condonation Guide: Making Up Lost Time in South African Labour Disputes

The CCMA Condonation Guide explains how employees and employers can rescue a dismissal or unfair‐labour‐practice case that has been referred to the Commission for Conciliation, Mediation and Arbitration (CCMA) after the statutory time-limit has expired. In short, condonation is a formal request for forgiveness of lateness, supported by facts and legal argument. Failing to secure condonation means the dispute is never heard on its merits, no matter how strong the underlying case might be.

Below is a comprehensive, step-by-step roadmap—grounded in South African labour legislation, CCMA Rules, and leading case law—to help you prepare, oppose, or adjudicate a condonation application confidently.

Why Time Limits Matter in the CCMA Condonation Guide

The Labour Relations Act 66 of 1995 (LRA) sets strict time bars:

• Dismissal or unfair labour practice referrals—30 days from the date of dismissal or the act/omission giving rise to the dispute (s 191(1)(b)).

• Section 145 reviews of arbitration awards—six weeks from the date the award is served.

• Bargaining Council referrals generally mirror CCMA limits unless the council’s constitution provides otherwise.

Missing these windows triggers the late CCMA referral condonation procedure outlined in Rule 9 of the CCMA Rules and interpreted through our courts.

Statutory Deadlines and Calculation of Delay Days

Before drafting anything, calculate the delay precisely:

1. Identify the trigger date (dismissal date, award date, etc.).

2. Count calendar days, excluding the first day but including the last.

3. Public holidays and weekends are counted—but Rule 2(2) extends deadlines that fall on non-business days to the next business day.

A correct calculation of delay days is crucial; an inaccurate count can sink an otherwise solid application. Providing a delay schedule as an annexure is best practice.

The Melane v Santam Test Factors in the CCMA Condonation Guide

South African courts have adopted the classic civil-procedure condonation framework from Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A). Commissioners evaluate four inter-locking factors:

1. Degree of lateness

2. Explanation for the delay

3. Prospects of success labour law (on the merits)

4. Prejudice to the parties

The test is holistic; “strong prospects may compensate for a long delay, and a short delay may compensate for weak prospects.” Your affidavit must address each factor in detail.

Drafting Your CCMA Application Form LRA7.11: A Step-by-Step CCMA Condonation Guide

Rule 9(3) requires that the condonation request be filed together with the main referral using CCMA application form LRA7.11 (dismissals) or LRA7.2 (review applications). Key drafting tips:

1. Tick the condonation box on the form.

2. Attach an affidavit labelled “Founding Affidavit: Condonation Application”.

3. Structure the affidavit under Melane headings.

4. Paginate and index annexures (pay slips, medical certificates, legal opinions, email chains).

5. Serve the bundle on the employer or employee by fax, email, or hand and file proof of service with the CCMA.

Evidentiary Tips for Employees: Building Prospects of Success in Labour Law

• Timeline charts: Visualise events to show prompt, reasonable conduct.

• Documentary corroboration: Workplace policies, emails showing attempts to resolve internally, disciplinary records.

• Medical or family emergencies: Supply hospital records or affidavits from medical practitioners.

• Legal consultations: Diary notes and correspondence with unions or attorneys explaining any inactivity.

The stronger the underlying case, the more lenient commissioners tend to be on delay.

Employer Perspective: Opposing or Supporting a CCMA Condonation Guide Application

Employers might:

• Consent to condonation (e.g., where internal appeal processes caused delay).

• Oppose by highlighting unreasonable delay or poor merits.

• File a replying affidavit within the period the CCMA directs (often 14 days).

• Emphasise prejudice—witnesses unavailable, memory faded, financial uncertainty.

Common Pitfalls and How the CCMA Condonation Guide Helps Avoid Them

• Vague explanations (“I was busy”)—provide specific dates and circumstances.

• Copy-and-paste affidavits ignoring Melane’s four factors.

• Failure to annex proof of internal grievance steps or hospitalization.

• Miscounted days—always attach a day-by-day calculation.

Preparing Supporting Affidavits: A CCMA Condonation Guide to Persuasive Evidence

• Obtain confirmatory affidavits from doctors, unions, HR managers.

• Stick to facts, not argument—legal argument belongs in heads of argument, if required.

• Use annexure tags (e.g., “Annexure TM1”) for quick reference during the hearing.

Calculating Prospects of Success in Labour Law

Prospects of success are normally canvassed briefly—the condonation hearing is not a full trial, but give enough to show a prima facie case:

• Procedural fairness: was the dismissal held per Schedule 8 Code?

• Substantive fairness: did the employee breach a rule? Is dismissal an appropriate sanction?

• Review prospects: in s 145 matters, show gross irregularity on the face of the award.

Attach key excerpts rather than voluminous transcripts.

Practical Timeline Checklist for Late CCMA Referral Condonation

FAQ – CCMA Condonation Guide Explained (H4)

1. What is condonation at the CCMA?
   Condonation is permission granted by a commissioner to proceed with a late referral or review despite missing the statutory deadline.

2. How late can I be and still succeed?
   There is no fixed cut-off, but the longer the delay, the stronger your explanation must be. Delays > 90 days face greater scrutiny.

3. Which form do I need?
   For dismissals, use CCMA application form LRA7.11 with the condonation box ticked; for reviews, attach a condonation affidavit to Form LRA7.2.

4. Does the Melane test apply to employers too?
   Yes. Any party seeking condonation must satisfy the Melane v Santam test factors.

5. What counts as “good cause” for delay?
   Examples include serious illness, ongoing internal appeals, or being misinformed by a union or HR about the deadline.

6. Will the CCMA hold a hearing?
   Usually, commissioners consider written submissions only, but they may schedule an oral hearing for complex disputes.

7. Can I appeal a refusal of condonation?
   Yes. You may launch a Labour Court review within six weeks, explaining why the commissioner misapplied the Melane principles.

8. What happens if I forget to serve the employer?
   The CCMA will likely refuse condonation for lack of service. Always file proof of service.

9. Are weekends included in time calculations?
   Yes. All calendar days count, but if the last day falls on a weekend or public holiday you may file on the next business day.

10. Does granting condonation guarantee I will win the case?
    No. Condonation only opens the door; you must still prove the dismissal or unfair labour practice case on its merits.

References (H5)

Useful Links (H5)

• CCMA Official Website – Rules & Forms — direct access to Form LRA7.11, Form LRA7.2, and the latest CCMA Rules.

• Labour Relations Act (full text) — free government portal with up-to-date amendments.

• SAFLII Labour Court Judgments — searchable database to find Melane v Santam line of cases and recent condonation judgments.

If you would like to know more about enforcing CCMA awards click here. 

If you would like to know more about the choice between settlement and trial click here.

If you would like to know more about Constructive dismissal click here.

If you would like to know more about the fairness of dismissal in absentia click here.

For information about unfair labour practices related to training click here,

For queries about legal representation in disciplinary hearings click here.

If your query relates to how UIF is claimed click here.

If your query relates to a matter where the employee in question is a domestic worker click here

If your query relates to whether or not someone is an employee click here.

If you would like to know more about interns and their rights click here.

If you would like to know more about unfair labour practices in general click here.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for errors, omissions, loss, or damage arising from reliance upon any information herein. Don’t hesitate to contact Meyer and Partners Attorneys Incorporated if you require further information or specific and detailed advice. Errors and omissions excepted (E & OE).

Meyer and Partners Attorneys have offices in Centurion and can assist with all of your Family Law, Civil Law, Contractual, and labour-related matters.