Case Law and Articles

Recent articles on employment law subjects

September 2021

Fired for not being vaccinated- On 1 September 2021, the Employment Relations Authority (“Authority”) issued a decision in GF v New Zealand Customs Service [2021] NZERA 382 where it grappled with the vexed issue of an employee (“GF”) being dismissed from their employment for failing to vaccinate.

“The (NZ) Authority concluded that GF’s termination was justified in that Customs actions were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or other actions, holding:

What Customs had done and had every right to do in law and the prevailing circumstances, was determine the position GF occupied could only be safely undertaken by a vaccinated worker;
Customs as a public agency had a clear responsibility to be guided by government directives to ensure public safety and public confidence in its operations;
While Customs had some limited leeway to categorise its employees as being covered by the vaccination requirement, Customs carried out this categorisation exercise carefully and fortuitously prior to the order being enacted they had undertaken the necessary work to put in place a structured and logical approach to dealing with employees reluctant to be vaccinate;
Alternatives to dismissal were vigorously pursued by Customs but GF was employed in a position that was already temporary in a geographical area of few opportunities and by definition in an ‘above establishment’ role;
GF’s lack of experience in other specialist roles Customs require worked against easy redeployment and GF did not constructively engage with Customs when it was becoming obvious that GF’s stance on being vaccinated would restrict employment prospects;
Good faith ‘runs both ways’ as a mutual obligation and GF failed to engage with her employer to properly apprise them of any practical as opposed to evident philosophical objections to accessing the vaccine.

The Takeaways

There are a number of takeaways from this decision.

Where a Public Health Response Order is in place requiring vaccination of employees who perform certain roles, a failure to vaccinate will, in all likelihood, result in termination of employment unless there are viable and safe redeployment options available for the unvaccinated employee. If there is a redeployment option available for the affected employee that should be explored.
Reliance on section 11 of the Bill of Rights and the right to refuse medical treatment is enshrined in law. This right cannot be infringed by your employer but a decision to decline medical treatment (i.e. the vaccine where a Public Health Response Order or a health and safety risk assessment requires it) may have downstream consequences such as termination of employment.
Health and Safety assessments are an important tool in any decision regarding roles that are deemed necessary to be carried out by vaccinated workers.
Regardless of the above, consultation remains a “must” and must be carried out in good faith.
Each matter that arises will need to be assessed on its own specific facts.”

For more on this matter, click on the link view the LinkedIn article here

THE PARITY RULE

Parity Rule explained by Mabaso AJ “[20] As per the case law above, the parity principle is a factor that has to be taken into account “no means decisive of the outcome of the fairness of the dismissal”. It is my considered view that the Arbitrator misconceived the nature of the law that he was required to apply when he ruled that the dismissal was substantively unfair. The Employees committed serious misconduct of fraud. Evidence presented that the Comparators were not linked to such fraud and the was no malice on the part of the Employer in not charging them, so the Arbitrator’s conclusion that they should be reinstated and be back paid is contrary to the evidence of the person who investigated and found that there was no case against the Comparators (sic). Therefore, it is my view that such a decision cannot be the one that a reasonable decision-maker could have made, taking into account the blameless opinion of Mr Havenga.
[21]   Furthermore, the Employees were dismissed for serious misconduct of fraud which the Arbitrator has confirmed. The LAC Schwartz v Sasol Polymers and Others flag against reinstating a dishonest employee thus;
“[30] In the current matter, the dishonest nature of the appellant’s misconduct which was of such a nature as to make continued employment intolerable and dismissal “a sensible operational response to risk management”. It would be fundamentally unfair and unjust to expect an employer to retain in its workplace a senior employee who has shown himself guilty of dishonesty in the manner of the appellant. The high premium on honesty in the workplace and the presence of dishonesty makes the restoration of trust, which is at the core of the employment relationship, unlikely.”
[22]   Based on the above, I conclude that it was unreasonable for the Arbitrator to direct the Applicant to reinstate the Employees after finding them guilty of fraud. The Employer cannot trust people who have committed fraud in the workplace and stated a reasonable reason why trust is broken as the misconduct is serious, including dishonesty. So, I conclude that no mitigation factors in this matter which outweigh aggravating circumstances.
[23]   In the circumstances, I conclude that the Arbitration Award found that the dismissal was unfair and ordered the Applicant to reinstate the Employees with back pay is one that a reasonable decision-maker could not have made taking into account the evidence presented before him.” View the LinkedIn article and the case here

In this September 2021 Judgment, the Labour Court considers the use of the uniform Rules of Court and how they apply in Labour matters; it also looks at condonation and prospects of success. Found that the Applicant who was accused of abuse of social media had shown no remorse and was not having the alleged medical knowledge had no prospects of success – Review dismissed. “7.  …Uniform Rules. The yardstick was, nonetheless, succinctly elucidated in Liquid Telecommunication (Pty) Ltd v Valerie Carmichael-Brown,[1] this Court, per Van Niekerk J, which I fully endorse. The court stated that: [13] Rule 11 (3) has often been cited as a basis for applying the Uniform Rules into this court’s practice and procedure. This court has recognised that in the absence of any Rule concerned specifically with exceptions, parties may, under Rule 11, have recourse to Rule 23 of the Uniform Rules (see, for example, Volscenck v Pragma Africa (Pty) Ltd (2015) 36 ILJ 494 (LC)). But this court has never gone so far as to suggest that parties are obliged or entitled to conduct litigation in this court on the basis of the Uniform Rules. It is clear from the formulation of Labour Court Rule 11 (3) that the Uniform Rules are not a form of default procedure in this court, nor is it open to litigants and their representatives to rely selectively on the Uniform Rules in the conduct of litigation in this court. Rule 11 (3) is permissive, and provides that the court (not the parties and their representatives) may sanction the use of a procedure not contemplated by the Rules when this is appropriate. In other words, Rule 11 (3) establishes a procedural mechanism for the convenience of the court. It is not an invitation to practitioners to invoke the Uniform Rules and conduct litigation in this court on the basis that the Uniform Rules apply.
[14] This is not to say that there is no procedure applicable in this court when a party contends that a pleading is vague and embarrassing, or discloses no cause of action or defence. Until the Rules of this court are amended so as specifically to regulate the filing of exceptions, Rule 11, as this court has held, is an appropriate basis on which to file an exception, and that Uniform Rule 23 is an appropriate guide as to when and how an exception should be filed. What I wish to emphasise is that this limited application of Rule 11 is not the gateway to the wholesale importation and application of the Uniform Rules, and thereby the creation of a parallel system of procedure in this court…’
8.   I am not persuaded that the third respondent acted with judiciousness in launching this application…
9.   Moreover, it is not the third respondent’s case that it will suffer prejudice if the irregular step or cause of complaint is not remedied.
10.   Similarly, the applicant’s failure to sign the commissioned founding affidavit has no bearing on the further conduct of this matter and must be overlooked. View the LinkedIn article and the case here

Fixed-Term Contracts and the Deeming Provisions – When will an employee on a Fixed-Term Contract be deemed an employee? In the case of Ekhuruleni Metropolitan Municipality v Lawrence Mandosela and 194 others – Labour Appeal Court Judgment – Handed down on 25 May 2021 – Here the LAC per Molefe AJA, found that the Labour Court had overstepped its powers by increasing the compensation awarded to the Employees from 3 months to 12 months. This matter involved two separate referrals. The first referral concerned whether the employees were deemed to be permanent due to the employer repeatedly employing them on contracts, and the second referral concerned whether they were unfairly dismissed when the employer dismissed them based on that their fixed-term contracts had terminated by effluxion of time. The deeming provision is section 198. The commissioner found that the work’s nature was ongoing, and it is axiomatic that it is not of limited or definite duration. He found that the fixed-term duration of the contracts was not justified. On 30 June 2015, he issued an arbitration award wherein he found that the dismissals were both substantively and procedurally unfair and awarded the employees three months compensation. Regarding the second referral, the employees set out that they are deemed to be permanently employed by the Appellant when they were dismissed after the Appellant refused to allow them to render services when the third contract ended. The arbitrator found that this contention was inherently difficult as the deeming clause embodied in section 198A (3)(b) of the LRA could only apply where there was a tripartite relationship between employees, a temporary employment service (TES) and a client. As there was no such relationship here, the deeming provision could not apply. At the Labour Court, Patel J found that due to the length of service and manner in which the services of the Employees were terminated that 12 months was a more equitable amount of compensation. On appeal, the LAC found that the Labour Court had a narrow discretion to interfere in the quantum awarded by a commissioner – the case of Kukard v Delkor (Pty) Ltd was quoted. The LAC set out that the Labour Court failed to advance any special circumstances justifying the 12 months remuneration award, nor did it furnish reasons as to the factors that led to such compensation. Concerning the Cross-Appeal by the employees who set out that the Labour Court should have found that the deeming provision applied the LAC set out that the case of David Victor and 200 v Chep was distinguishable and that here there was, in reality, a job creation programme which achieved its objectives. There was no active TES and no proof or basis for concluding that the Employees became permanent when the contract expired by effluxion of time. The cross-Appeal was accordingly dismissed.

view the LinkedIn article and the case here

Costs in the Labour Court – In the case of Association of Mineworkers and Construction Union v Minister of Mineral Resources and Energy and Others (J427/2020) [2020] ZALCJHB 68; (2020) 41 ILJ 1705 (LC); [2020] 9 BLLR 929 (LC) (4 May 2020) #AMCU goes all the way!? #COSTS in the #LabourCourt Association of Mineworkers and Construction Union v Minister of Mineral Resources and Energy and Others (J427/2020) [2020] ZALCJHB 68; (2020) 41 ILJ 1705 (LC); [2020] 9 BLLR 929 (LC) (4 May 2020) #arbitration #EmploymentLaw
[49] The factor that is perhaps more significant than any other in the present instance is that expressed as long ago as 1992, in NUM v East Rand Gold and Uranium Co Ltd (1991) 12 ILJ 1221 (A), where what was then the Appellate Division of the Supreme Court considered the prejudice that an order for costs might have on a relationship between collective bargaining partners. The court held that an order that each party pay its own costs was appropriate. The court (per Goldstone JA) said the following:
The parties before the industrial court will often have an on-going relationship that will survive after the court has resolved the dispute. A costs order, especially where the dispute has been a bona fide one, may damage that relationship and detrimentally affect industrial peace and the conciliation process (1243).
[50] Although the present case is not concerned with collective bargaining, it is intimately concerned with the tripartite relationship that exists between the state, employers and organised labour in the mining industry. The concerns expressed about the effect that an adverse order for costs might have on an on-going relationship between collective bargaining partners are equally valid to relationships between the social partners. This is particularly so where the order granted in these proceedings, but for the two issues addressed in this judgment, is by and large the product of consensus. The terms of that order anticipate future and on-going engagement by the DMRE with the social partners and the representatives of mining-affected communities. The degree of co-operation (rather than confrontation) that will be necessary to give effect to the order and the limit may well be undermined should relationships between the parties be soured by an order for costs. Here, per Van Niekerk J, the Court ordered that each party is to pay its own costs.
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Section 77 of the BCOEA – In the case of National Union of Mineworkers and Another v Seriti Coal (Pty) Ltd t/a New Vaal Colliery (J1766/19) [2021] ZALCJHB 133 (5 July 2021), the Court looked at #Section77 of #BCOEA – Here, the Applicants sought via a #declarator to claim the employee’s #OutstandingSalaries from the date of the #Award until the date of #reinstatement being a period of over 5 years. The Respondent raised two defences – (1) the Applicants cited the incorrect party, (2) the Applicants failed to make out a case in their founding papers. The Court, per Mabasa AJ, found that whereas the Respondent had conceded that legally the #Employee had a claim against it set out that the Applicants had failed to quantify it. Further, whereas the Respondent set out that the Applicants were meant to deal with issues such as whether the Employee reported for duty and the #quantification of the claim. Found that the Employee had initially tendered his services and that the Respondent had turned him away and set out that it sought to review the Award. Such Employee is automatically entitled to his full #remuneration because the #Employer prevented him from reporting. Found that the defences raised by the Respondent were not #contractual. No need by Employee to quantify claim as not in dispute that the reinstatement order itself revived the #EmploymentContract. Respondent not raising defence that Employee worked elsewhere. Respondent ordered to pay the Employee the full outstanding remuneration from 02 May 2013 to January 2018 with interest from 02 May 2013. #employmentlaw #humanresources #employment

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Restraints of Trade – In the case of Bulldog Abrasives Southern Africa (Pty) Ltd v Davie and Another (J123/21) [2021] ZALCJHB 58 (20 May 2021), Judge Moshoana considered the issue of #restraints of trade. This was yet another case where the Court found that restraints of trade are #enforceable even where they are restrictive! This restraint was enforced on a paint sales manager who went to work for a competitor after he was dismissed. Moshoana J discusses restraints. Here the Judge departs from the Oomph decision, which he finds was clearly wrong and that the onus is on the employee to show that the restraint is too stringent and that it should not be enforced. #EmploymentLaw

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Restraints of Trade – In the case of Biobee Integrated Crop Solutions (Pty) Ltd v Botha and Others (J 673/21) [2021] ZALCJHB 181 (6 July 2021), Judge Moshoana of the #LabourCourt looked at #RestraintsOfTrade and the #Constitution. In considering a Restraint of Trade, the Court must apply the principles of #breachofcontract and decide whether they are applicable. If the answer is in the affirmative, then the Restraint of Trade must be enforced. Where unreasonableness alleged the onus is on the party alleging to prove. Here the respondent admits that the contract existed and it was common cause that she went to work for the competitor. The respondent contends that she was entitled to the information she has is freely available to anybody. The Judge finds the respondent unable to prove the #defences. Restraint upheld. #Costs granted. #Section 22 of the #Constitution and the principle of #PublicPolicy compared and discussed. #EmploymentLaw #caselaws

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Contempt of Court – #ContemptOfCourt #Compliance #Employmentlaw In the case of SAMWU obo Prince v Sol Plaatjie Municipality and Another (J2080/19) [2021] ZALCJHB 146 (22 June 2021) Van As AJ found that the State, as the #Employer, had substantially complied with the Court Order ordering it to reevaluate the #Employees position when it upgraded him from level 7 to level 9. “[22] The … dispute of fact must be determined on the Municipality’s version of events unless such version is implausible. This is especially so where the criminal standard of proof is applicable.” #CriminalStandard #BalanceOfProof #incarceration #governance

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Settlement – In full and final – In the case of Toerien v University of Witwatersrand Johannesburg (JS628-20) [2021] ZALCJHB 116 (27 May 2021) #Settlement #FullAndFinal #Procedure #PublicPolicy #SpecialPlea Coetzee AJ considered a Special Plea raised by the Respondent #Employer to the effect that the parties had settled the matter in full and final and that as a result, the Applicant #Employee had no case. #employmentlaw

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Jurisdiction of the Labour Court – Dlamini and two others v Hydra Arc (Pty) Ltd – Date of Judgment 09 June 2021 – #Referral to CCMA of #dismissal for #StrikeAction. Applicants pleaded case is the case to be decided by the Court. In this lengthy Judgment, Snyman AJ sets out what #JURISDICTION the Court has and how this is to be decided. Other issues considered are #Condonation #ProspectsofSuccess #PracticeProcedure #Employmentlaw #Judgment To read are para’s 50 onwards. “[55] …. That is precisely the case with the current applicants, which is actually apparent from their own CCMA referral. It followed that when the CCMA declined jurisdiction in casu, that was correct, and it was competent to refer that pleaded case to this Court. This was not a case of the applicants slicing and dicing their dispute into components. They pinned their flag to the mast and pursued one dispute of alleged unfair dismissal for participation in unprotected strike action to the CCMA, and ultimately to this Court. The applicants are not pursuing, on their own pleaded case, any kind of other unfair dismissal dispute (which) this Court has no jurisdiction to decide.”

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Urgent Application – Lockout vs refusal to tender services – Airline Pilots Association of South Africa (ALPA-SA) as Represented by the South African Airways Pilots Association (SAAPA), a Branch of ALPHA – SA obo Members v South African Airways (SOC) Limited and Others (J 398/21). Here the Pilot’s Union/Association, acting as the Applicant, sought a #declarator to the effect that the lockout instituted by SAA was unprotected/unlawful. Also sought that SAA be interdicted from participating in the lockout or related activities. In essence, the Applicant sought to prevent #replacementlabour from being utilised by SAA in terms of Section 76 of the LRA. The Applicant already lost an Urgent Application on 23 May 2021, where it was found that the replacement labour was permissible in that the pilots who were sought to be replaced were not part of the lockout. The Court per Prinsloo J found that the initial lockout by SAA did not include the pilots and that the situation was rather that the Pilots were refusing to do their duties. The Applicant sought to supplement their papers in anticipation of the Urgent but failed to apply to amend or application seeking leave to amend. The Court considered whether a #SupplementaryAffidavit was permissible. The Court found that the party seeking to submit such papers must provide a proper and satisfactory explanation as to why the facts or information contained in the additional affidavit were not placed before the Court earlier. The Court must be satisfied that no prejudice is caused to the other party that cannot be remedied by an appropriate costs order (par 37). Found that the facts now sort to be alleged were known to the Applicant at the time of its filing of the Application. A party cannot use supplementary papers to try and better articulate its case or put forward a revised version. No convincing explanation was given. Further similar relief was sought in the High Court prior to launching the Urgent Application, and the Applicant failed to advise the Court thereof. To allow the Applicant to introduce new claims would be condoning a gross abuse of the Court’s processes, would be to ignore the substantive law and the consequences of #LisAlibiPendens and would not be in the #interestofjustice. The Applicant’s attempt to get urgent relief from the LC while keeping the back door open is opportunistic and seems to be an attempt to obtain a second bite at the cherry. Urgency considered – found that the relief related to a lockout that commenced on 18 December 2020. The explanation given amounted to that the new attorney coming up with a new angle. No Urgency found. Application dismissed. Obiter – Pilots were not locked out, instead they refused to tender their services. #employmentlaw #urgency

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National Union of Mineworkers obo Masha and Others v SAMANCOR Limited (Eastern Chromes Mines) and Others (CCT 154/20) [2021] ZACC 16 (22 June 2021) – Five employees at a mine were fired for repeatedly failing to comply with safety instructions. The CCMA found unjustifiable differentiation between employees, which amounted to an inconsistency in the implementation of the disciplinary measures. Accordingly, the arbitrator held that the dismissal was unfair and issued an award for reinstatement of the employees. The Labour Court held that SAMANCOR had failed to prove that the employees had defied the written instruction given to them. The review application was dismissed with no order as to costs. The Labour Appeal Court held that the five employees were aware of the rules and that dismissal was an appropriate sanction for contravening the rules, even for a first offence, where there was wilful endangering of the safety of others. The court replied on Impala Platinum Ltd v Jansen [2017] 4 BLLR 325 (LAC) regarding mine safety and found the dismissal justified. Mhlantla J discusses the serious nature of the employees’ misconduct, which placed their lives and those of other workers at risk, and finds that the Labour Appeal Court was correct in confirming the dismissal. The application for leave to appeal on the merits lacked reasonable prospects of success and was refused. * The appeal against the costs order of the Labour Appeal Court is upheld, and the costs orders are set aside. See from para [28]. Impala Platinum Ltd v Jansen [2017] 4 BLLR 325 (LAC)
Read this case here https://lnkd.in/dmuChXp

Unanimous judgment of the CC – issue of #consistency of discipline/ costs considered. Court further held that the matter engaged its #jurisdiction as it implicated the employees’ rights to #fairlabourpractices, a fair hearing and access to #justice. “On the merits, the Court held that it had to be borne in mind that Ms Maseko had not participated in the drilling exercise and was not present when the mine overseer arrived at the site. Another employee, Mr Motlhabing, had installed the safety mechanisms but had failed to do so adequately. Therefore, their cases were distinguishable from that of the dismissed employees. Thus, the LAC’s finding that there was no inconsistency of discipline was unassailable. On the question whether the sanction imposed was disproportionate, the Court held that given the nature of the mining industry, and its often unsafe conditions, the disregard of the mine overseer’s instructions was serious. This misconduct endangered the employees’ lives and that of the other workers. Accordingly, dismissal was an appropriate sanction. Therefore, the Court held that the application for leave to appeal against the dismissal lacked prospects of success and fell to be dismissed. The applicant submitted that the costs order was unjustified in relation to costs as the LAC had failed to apply the principle set out by its earlier decision in Dorkin and later by this Court in Zungu. Therefore, it did not exercise its discretion judicially. The first respondent argued that the principles on awarding costs are trite and do not constitute a point on which this Court should expand as it is neither an arguable point of law nor a constitutional issue. This Court held that the Labour Appeal Court erred in awarding costs against the applicant as this was at odds with its decision in Zungu. In Zungu, this Court held that the rule of practice that costs follow the result does not apply in labour matters. It further cited Dorkin, for the underlying rationale in relation to the principle, wherein it was stated that it is important not to discourage employees, unions, and employers’ organisations from approaching the labour courts for fear of an adverse costs order. In any event, where such an order is made, reasons must be provided. The applicant has a duty to defend its members’ rights, and that alone cannot justify a costs order in the absence of untoward conduct on their part. In this case, the LAC failed to provide reasons. This was compounded by the fact that the LAC substituted the order of the Labour Court on costs and issued a costs order against the applicants where the Labour Court had not done so.” So two points are gained therefrom: 1) #EMPLOYERS CAN DIFFERENTIATE WITHIN #REASON 2) WHEN AWARDING #COSTS A COURT MUST GIVE REASONS.
#employmentlaw #law #safety

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Brightstone Trading 3 Closed Corporation t/a Gordon Road Spar v Economic Freedom Fighters and Others (J 605/21) [2021] ZALCJHB 122 (18 June 2021) – the EFF was ordered by the Judge to pay the costs. The EFF, particularly its regional secretary, Fighter Sechaba Sono, was called upon by an employee, who had been demoted, to interfere with it’s labour structure. The EFF sent the Company a letter of demand and alleged various infractions. The Employer warned the EFF that it was not a Trade Union and, as such, it had no duty to abide by its threats. The EFF then went totally rogue. The Labour Court has warned the EFF not to act as a Trade Union on various occasions, but it seems it will not listen. #Strike #Employmentlaw #urgency

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Section 187

Automatic unfair dismissal is a term used to describe certain situations where an employee was dismissed for a specific reason which is protected by legislation. Some examples of automatically unfair dismissals are dismissals relating to asserting a statutory right. maternity/paternity leave. parental/adoption leave.
Rocket Lawyer
Automatically unfair dismissals
The following reasons for dismissal are invalid. The dismissal will be regarded as automatically unfair if the worker is dismissed for:
exercising any of the rights given by the LRA or participating in proceedings in terms of the Act.
1) taking part in lawful union activities
2) taking part in a legal strike or other industrial action or protest action
3) refusing to do the work of someone who was on strike
being pregnant, or any reason related to pregnancy
refusing to accept a change in working conditions
reasons that are due to arbitrary discrimination (except that an employer may retire someone who has reached the normal or agreed retirement age, or if the reason is based on an inherent requirement of the job, for example being able to speak a certain language in order to do the job properly)
4) a reason related to a transfer following a merger of the company with another organisation
5) where the employee is dismissed following a disclosure made by him in terms of the “Disclosure of Information Act”.

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Raising of the issue of Jurisdiction – Remember that Jurisdictional issues can be raised at any stage. But do not leave it too late, as if you do, you may be assumed to have waived your rights to raise same.
Remember that an attorney can appear at the CCMA on your behalf to raise such issues.
Here are some of the jurisdictional points that any party can raise:
1) Lateness of the referral of the dispute – be it in respect of the referral to conciliation or arbitration
2) Matter already been settled
3) Whether the applicant is an employee of the particular Company
4) Employee vs Independent Contractor
5) Jurisdictional points relating to foreign nationals/illegal contracts
6) The dispute arose outside the geographic area of the CCMA
7) No conciliation
8) The Labour Court has jurisdiction
9) The issue is an interest dispute
10) Unfair labour practices – closed list – dispute does not fall under the legal meaning of the list
11) Res judicata (not where referral withdrawn and re-referred later – which is possible)
12) Dispute arose before the commencement of Act/ amendment.
For representation contact Goldberg Attorneys 0832607530 – For Heads of Argument on jurisdiction issues follow Goldberg Attorneys on Linkedin or https://lnkd.in/dtvMHhi
Article by Porthri Blauw, May 2021 #employmentlaw #hr #jurisdiction #labourlaw

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Kock v CCMA & Others (JR 764/18) [2021] ZALCJHB 101 (31 May 2021) In this lengthy reportable Judgment, Snyman AJ considers the issue of Condonation on Review. As a practising attorney brought the application, she could not claim ignorance of the law. The Review Application was filed late, as was the Record. The Judge sets out the case law as regards the late filing of a Review & the need for expeditious resolutions of disputes (Piemans/Seatlolo); where a party relies on a medical certificate, an Affidavit in support thereof is necessary (Mgobhozi); the late filing of the record & Compliance with the Practice Manual; the 60-day time limit & the need to seek an extension before the period elapses otherwise it is considered withdrawn (Mlalandle/Zono); what an Application for reinstatement entails (Zono); filing of an application for condonation is premature where you are seeking to condone an event that has not happened; need for a proper & acceptable explanation (Mtshwene); lack of funds is nothing unique (Du Plessis); the need to apply for reinstatement ASAP & the the Review remains withdrawn until this is granted (Zono); the need to file all relevant parts of the Record on Review & to comply with Rules 7A (6) and (8); the 12 month period & undue delays in prosecution (MacSteel); Condonation denied – Review dismissed. #employmentlaw #review #condonation

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In 2013 the great Judge STEENKAMP wrote a letter to us all. We never listened at the time, perhaps we will listen now. We miss the great Judge… it seems like it was yesterday that he asked me: “Mr Goldberg, how much do you charge to catch the lift up to the Labour Court.” He had a great sense of humour … he called the law “an ass” in a Judgment “nogal”, but he will be more remembered as a guide to many lawyers and advocates as to how to present your papers to the Court. It was 2 years ago that he met his fate. RIP, SIR JUDGE ANTON STEENKAMP #integrity #judge #labourcourt #respect!!!! #employmentlaw

1. Do not use archaic words that you would not ordinarily use.
2. Do not refer to yourself as “writer”. Use the first person.
3. Write in the active voice.
4. Use action verbs. Do not nominalize.
5. Do not use long sentences with various sub-clauses. Break it up…
6. Organise your documents. Start with the most important – a summary is often useful. Group similar issues together.
7. When you file pleadings: Paginate and index; use headings and sub-headings; provide a list of the dramatis personae and a timeline to help the judge.
8. If there are several respondents, identify them.
9. Proofread – do not rely on spell-check.
10. Be brief.

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Condonation – Junkeeparsad v Solomon and Another (37003/2019; 37456/2019) [2021] ZAGPJHC 48 (7 May 2021) Within the legal profession, condonation is where your referral or pleadings are late, and you need to ask the court for an indulgence or forgiveness for the delay.
What needs to be in your Founding Affidavit?
To succeed with a Condonation Application, there are certain aspects that you need to discuss in your Condonation Application.

The following aspects need to be explained:

1. The degree of lateness of the referral:
Inform the Court how many days you are late with your pleading/ referral of your matter.
Calculate the number of days you are late – importantly you may need to look at Court days vs normal days.

The website to use is https://lnkd.in/dTNgDET

2. The reason/s for the lateness:
On this aspect, you must explain in detail why you are late.
You must explain the delay; it would be good to attach documentary proof if you have any.
3. The prospects of success on the merits of the matter:
You must provide a brief description of the merits
By doing this, you confirm that you have good prospects of winning your case.
4. Prejudice:
It is important to express that the other party will suffer more prejudice if the matter is not heard.
These poor attorneys seemed to have little idea of what a condonation application is.
#pleadings #law #employmentlaw CONDONATION FOR LATE FILING – “GOOD CAUSE”
Two advocates seek payment of their outstanding fees in respect of legal services they rendered to the attorney’s clients, for the one client of R1,65 million and for another client of R829,000. In an interlocutory application to the two main applications (the hearing of which has been consolidated) the attorney seeks condonation for his failure to have filed his answering affidavits in the main applications within the time fixed by an order of the court, and that he be granted leave to file such answering affidavits.
Meyer J discusses Rule 27 and “good cause”; the chronology of the background facts; whether the application for condonation is bona fide – para [46]; and the respondent’s defences.
The condonation application is dismissed.

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