Case CCT29/18 
[2019] ZACC 17

Hearing Date: 14 November 2018 
Judgement Date:30 April 2019

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Tuesday, 30 April 2019 at 10h00 the Constitutional Court handed down judgment in an application for leave to appeal against a judgment of the Labour Appeal Court.  The matter was a sequel to protracted litigation between the parties that came before this Court in Steenkamp I, and concerned whether the applicants (employees) had made out a case for condonation, as their application was filed outside of the time periods set by the Labour Relations Act (LRA).  The matter also concerned the nature of the relief sought by the employees.

During the period 2013 to 2015, the respondent (Edcon) retrenched approximately 3000 employees for operational requirements.  In doing so Edcon failed to comply with the requirements of the LRA.  The employees approached the Labour Court relying on a cause of action grounded in the common law instead of the LRA following the precedent established by the Labour Court in De Beers and sought an order to the effect that the dismissals were invalid and of  no force and effect.  When this matter eventually came before the Constitutional Court in Steenkamp I, the Court overruled De Beers and did away with the common law cause of action, with the result that the employees could only ground their dispute on the LRA.

Within 30 days of the Steenkamp I judgment, the employees brought an application in terms of section 189A(13) of the LRA challenging the procedural fairness of their dismissals and seeking compensation as a remedy for the unfair dismissal.  The application was brought out of time.  The Labour Court granted condonation for the late filing and held that the employees had provided a plausible explanation for their delay because they had initially relied on the common law cause of action which, although it had since been overturned, was competent at the time.  On appeal, the Labour Appeal Court overruled the Labour Court’s decision to grant condonation and held that a “failed legal strategy” was no excuse for the lengthy delay and that section 189(A) remedies are not available “long after” a retrenchment process has been concluded and must be utilised expeditiously.

Before the Constitutional Court, the employees argued that condonation should be granted because their reliance on the common law cause of action in Steenkamp 1 had been reasonable and competent at the time.  The employees further submitted that the compensation remedy they requested pursuant to section 189A(3)(d) of the LRA is a self-standing remedy and that the Labour Court may order compensation long after the dismissals have been effected.  Edcon contended that condonation should be refused in light of the lengthy delay and the urgent and expeditious nature of section 189A applications and its remedies.  The respondent further submitted that compensation is not a self-standing remedy.

In a unanimous judgment penned by Basson AJ, the Constitutional Court found that the Labour Court did not exercise its discretion judicially and in such circumstances the Labour Appeal Court’s interference with that discretion was justified.  The Court held that, in granting condonation, the Labour Court failed to take into account the purpose and function of section 189A(13) applications and the expeditious nature of LRA disputes.  There are various factors to be considered when deciding whether to grant condonation; an explanation for the delay is only one of the factors.  These factors must be considered within the broader context of the LRA.  An overturned legal strategy alone was thus found not to be sufficient to show good cause for granting condonation.  The Labour Court did not consider whether compensation is a self-standing remedy or not.  The Court further found that a compensation remedy is not a self- standing remedy as it is dependent on the court having first found that remedies in paragraphs (a)-(c) of section 189(13) are not appropriate.  The application for leave to appeal was accordingly dismissed.            


The Full judgment  here