South Africa: Durban Labour Court, Durban

IN THE LABOUR COURT OF SOUTH AFRICA

(HELD IN DURBAN)

                        Case no: D 1782-17

Not Reportable

In the matter between:

LONDEKA GWALA                                             Applicant

and

CCMA                                                                 First Respondent

SIZWE M NGUBANE N.O.                                 Second Respondent

CHICKENLAND (PTY) LTD t/a NANDOS         Third Respondent            

Heard:           2 July 2020

Judgment delivered:         5 August 2020

JUDGMENT

WHITCHER J

[1]       The application to review and set aside a condonation ruling by the second respondent (“the commissioner”) is dismissed for the following reasons.

[2]       The review application does not pass the stringent test for a review and the very circumscribed basis upon which a court is entitled to interfere with a discretionary ruling.

[3]       It is evident from the ruling that the commissioner appreciated the factors that needed to be considered in a condonation application and applied his mind thereto.

[4]       It cannot be said that no reasonable commissioner could have found that the applicant failed to provide a reasonable explanation for the delay and failed to demonstrate good prospects of success in the dismissal dispute.

[5]       It is common cause that the applicant was warned in his dismissal letter that if he chooses to refer his matter to the CCMA, it must be done within 30 days.

[6]       The applicant did not require the third respondent’s disciplinary code to refer his matter to the CCMA. In any event, one does not need a disciplinary code to confirm that the allegations proffered against the applicant constituted a dismissible offence.

[7]       The minutes of the disciplinary proceedings and the outcome report indicate that the applicant has very poor prospects of success on the main charge.

[8]        In the premises, the review application is dismissed.

________________________________

Benita Whitcher

                                                                        Judge of the Labour Court of South Africa

APPEARANCES:

APPLICANT:                         Xaba Attorneys

                                             dumixaba@xabainc.com

THIRD RESPONDENT:      Guardian Employers Organisation

                                           geoffc@geo.org.za