We are often presented with the question of what condonation is and what it entails when consulting with new clients. This article will serve the purpose to inform you what condonation means and what it entails.
What is Condonation?
In South African law we have set times or “deadlines” when certain documents need to be completed; this is when it needs to be handed in to a court or the CCMA. This means, that when you do not comply with these rules and you are late in submitting a document, you must apply for condonation.
In broader terms you must ask the court/CCMA to condone the late submitting/filing of the document.
The above is done by way of a Condonation Application. An Application usually consists of a Notice of Motion and a Founding Affidavit.
What needs to be in your Founding Affidavit?
In order to succeed with a Condonation Application, there are certain aspects that you need to discuss in your Condonation Application.
The most common Condonation Application that needs to be done, is in the CCMA. The reason being, that in a lot of instances a case is referred outside the 30-day period allowed by the CCMA.
The following aspects need to be explained:
1. The degree of lateness of the referral:
- You need to inform the CCMA how many days you are late in referring your matter.
- When calculating the amount of days that you are late, you need to bear in mind that the CCMA includes weekends and public holidays.
- You were dismissed on 2 January 2018 and you want to refer your matter on 15 February 2018, how many days are you late?
- Firstly, you determine that you had 30-days to refer your matter, this means that on 2 February 2018 the 30-day period had lapsed;
- This means that your referral will be 13 days late, if you count the days from 2 February 2018 – 15 February 2018
- Remember that you have to include the day on which you sign your founding affidavit.
2. The reason/s for the lateness:
- On this aspect, you must explain in detail to the CCMA why you referred the matter so late;
- You must explain the delay and it would be sufficient to attach documentary proof, if you have any.
3. The prospects of success on the merits of the matter:
- You must provide the CCMA with a brief description of why you were dismissed and why you feel that you will succeed in the matter.
- You must especially inform the CCMA if the procedure followed at your disciplinary hearing was unfair and you must further explain why the employer had no grounds to dismiss you;
- By doing this, you confirm that you have good prospects of winning your case at the CCMA.
- It is important to express to the CCMA that you will suffer more prejudice if the matter is not heard.
- You can provide the CCMA with reasons as to why you will suffer more prejudice.
- Some examples where an employee will suffer more prejudice, is the the fact that you have a family to feed or that your wife/husband or partner is also unemployed and they were depending on your salary.
The CCMA provides a set form which can be filled in when applying for condonation, but it has been my experience that in most cases a fuller description is required in order for the CCMA to be sufficiently provided with all the relevant information.