CONDONATION – LATENESS DUE TO SPIRITUAL CALLING
- Jonathan Goldberg
- Jul 2
- 3 min read
In the matter of Aspen Holdings Pty Ltd and Another v Phelane and Another (JA 71/23) [2025] ZALAC 4; [2025] 4 BLLR 409 (LAC) (23 January 2025)
The Labour Appeal Court (LAC) considered a ruling of the Labour Court (LC) which had allowed a former employee to file his automatically unfair dismissal claim outside the legal time period.
Its judgment provides a clear reminder of the strict approach Courts take when parties fail to comply with statutory deadlines, especially where no proper explanation for the delay is given.
The employee, a former group operations quality auditor at the employer, was dismissed in December 2020 after failing to attend his disciplinary hearing. He referred the matter to the CCMA, alleging that his dismissal was automatically unfair because it amounted to discrimination based on culture and religion. Central to his claim was that his ill health and absence from work were linked to intwaso – a spiritual calling to become a traditional healer, which he said Aspen failed to accommodate.
The CCMA issued a certificate of non-resolution on 6 January 2021, which meant the employee had 90 days to file his statement of case in the LC. He filed only on 18 May 2021, making him 41 days late.
The employer did not file a response to the statement of case, but instead raised an objection that his referral was outside the statutory timeframe. Only after this point did the employee submit an application for condonation – itself another 36 days late.
The LC granted condonation. It held that:
The 41-day delay was “not excessive”.
Although the explanation was poor, the employee acted on incorrect legal advice and had not acted in bad faith.
He allegedly had good prospects of success because his claim related to cultural and religious discrimination.
There appeared to be factual disputes that needed to be ventilated at trial.
On this basis, the LC exercised its discretion to excuse the late filing.
The employer appealed, arguing that the LC misapplied the principles governing condonation. The LAC agreed.
The Court emphasised that:
An applicant for condonation must give a full, reasonable explanation covering every day of delay.
Without such an explanation, prospects of success are irrelevant.
Courts must consider both the initial delay and any further delay in bringing the condonation application.
Negligence by a legal representative does not automatically excuse a litigant.
The LAC found that the employee provided no explanation for the 36-day delay after learning that he needed condonation. This omission was fatal. The LC had simply ignored this second period of non-compliance and therefore misdirected itself.
The Court also criticised the LC for relying on the contents of the employee’s statement of case (which was not properly before it) and for assuming good prospects of success without proper evidence.
The LAC upheld the appeal and replaced the Labour Court’s order with one refusing condonation. This effectively ends the employee’s attempt to pursue his dismissal challenge.
This article is for informational purposes only and does not constitute legal advice. For specific legal guidance on protected disclosures, employment practices, or compliance obligations, consult a qualified labour law practitioner.
© 2026 Global Business Solutions (GBS). All rights reserved.
If you’re looking for a practical way to build AI capability this year, the AI Compass Capacitation Programme offers a structured 6-month learning journey for professionals across business functions. Running from July 2026 to January 2027, the programme covers AI foundations, prompting, practical AI tools, Microsoft Copilot, process thinking, automation, bot building, and AI law and governance, with a strong focus on real-world application. Learn more about Intake 2 and how to register here.
View our upcoming events: Upcoming Events and Qualifications, like AI Compass Intake 2, B-BBEE: SED: From Charity to Change, Double-Barrel Webinar: Two Laws. One Morning. Everything You Need to Know, and Disciplinary Enquiry & Arbitration Master Class (Live: PE/Gq, CT & Virtual).
*All workshops are offered as customised in-house training that can be presented virtually or on-site.
Comments