SOLIDARITY OBO VISAGIE v HARMONY GOLD MINING COMPANY LTD [2026] ZALCJHB 122;

Date of Judgment & Seat of Court: 10 April 2026; Labour Court of South Africa, Johannesburg

Name of Judge(s): Collis AJ

Summary of Factual Matrix: 

Harmony launched an application to review an arbitration award issued by the CCMA under case number FSW 2381-21. On 15 May 2023, Solidarity (acting for Mr Visagie) launched a Rule 11 application to dismiss the review application and make the arbitration award an order of Court. Harmony delivered its notice of intention to oppose and answering affidavit on 29 May 2023. 

The applicant's replying affidavit to the Rule 11 application was delivered only on 17 August 2023, approximately two and a half months late. Harmony delivered a notice of objection on 18 August 2023. 

The applicant then delivered a condonation application on 7 September 2023. The present judgment addressed the condonation application.

Summary of Findings:

"[14] It is trite that in an application for condonation, a deponent will be required to address the following aspects: 14.1 the degree of lateness or non-compliance in relation to the prescribed time frames; 14.2 the explanation for the lateness or the failure to comply with the time frame; 14.3 prospects of success in the main application and obtaining the relief sought against the respondents; and 14.4 prejudice to the Respondents party."

"[15] As per the Founding affidavit Harmony delivered its notice of intention to oppose and Answering Affidavit on 29 May 2023 and as such any Replying Affidavit should have been served on Harmony by no later than 5 June 2023. The Replying Affidavit, having only been delivered on 17 August 2023, was therefore two and a half months late."

"[17] In the Founding affidavit, the deponent explains that the matter was previously dealt with by Ms. Melissa Erasmus, a union official who has since resigned, with her last working day being 26 June 2023. Ms. Karolien Van Wyk, the deponent further explains that she was only appointed in the position of Ms. Erasmus on 1 August 2023 and having made enquiries as to the status of the present matter proceeded to draft the Replying Affidavit on 17 August 2023."

"[20] In this regard Harmony alleges that as early as 14 June 2023, when Ms. Erasmus was still in the employ of Solidarity, she emailed the attorneys of Harmony informing them that she will proceed to set the matter down on the opposed roll. This was before any Replying Affidavit was filed and also at a time when Ms. Erasmus was still in the employment of Solidarity. Thus, a month before she left such employment."

"[23] An Applicant is required to adequately explain the entire duration of the delay and from what has been set out in the founding affidavit regarding the delay, this Court cannot but conclude that the Applicant never intended to deliver a Replying Affidavit and that it would appear that this need only arose when Ms. Van Wyk took over the matter and suggests to be a mere afterthought."

"[24] For the reasons alluded to above, this Court concludes that the explanation for the delay is wholly inadequate."

"[25] In respect of the Applicant's prospect of success, as per the founding affidavit, the deponent sets out that the Applicant enjoys good prospects of success. To this end the Applicant merely avers as follows: '......The prospects of success of the rule 11 application are more fully explained in the founding affidavit filed herein.' The mere say so, of enjoying good prospects of success without expanding what those prospect entails is insufficient absent any reference to the supporting facts justifying such contention."

As such the Court held that the applicant failed to meet the requirements for condonation: 

(i) the delay of three months and two days was substantial; 

(ii) the explanation (resignation of prior union official, late appointment of replacement) was inadequate, particularly given evidence that steps to enrol the matter were contemplated while the prior official was still employed; 

(iii) prospects of success were merely asserted without substantiation; and 

(iv) prejudice existed in that permitting the late filing would reopen pleadings where Harmony was entitled to finality.

Order:

"31.1 The Condonation application is dismissed. 

31.2 No order as to costs."