CONSTITUTIONAL COURT OF SOUTH AFRICA


CCT 13/24

In the matter between:


PABALLO MOTHULWE Applicant

and

LABOUR COURT, JOHANNESBURG First Respondent

MARTIN SAMBO N.O. Second Respondent

GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL Third Respondent

DEPARTMENT OF PUBLIC WORKS , ROADS
AND TRANSPORT , MPUMALANGA Fourth Respondent

JUDICIAL SERVICE COMMITTEE OF
SOUTH AFRICA Fifth Respondent



Neutral citation: Mothulwe v Labour Court, Johannesburg and Others [2025]
ZACC 10

Coram: Maya CJ, Madlanga ADCJ, Kollapen J, Majiedt J, Mhlantla J,
Rogers J, Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J

Judgment : Kollapen J (unanimous )

Decided on: 8 May 2025

Summary: Rescission — res judicata — section 34 of the Constitution —
access to courts

2


ORDER



On appl ication for leave to appeal from the Labour Court of South Africa :
1. This Court ’s order in CCT 80/22 dated 23 May 2023 is rescinded .
2. This Court ’s order in CCT 80/22 dated 19 July 2022 is rescinded .
3. Leave to appeal the decision of the Labour Court dated 4 October 2021 is
granted.
4. The appeal is upheld on the basis set out below.
5. The applicant’s cross -review application in respect of the finding of guilt
and the condonation application for the late filing thereof are referred to
the Labour Court for determination by another judge.
6. If the Labour Court grants the applicant condonation, upholds the
cross -review and sets aside the arbitrator ’s findin g of guilt, the
Labour Court’s order dated 4 October 2021 in the review application (in
respect of sanction) shall fall away.
7. If the Labour Court refuses condonation or dismisses the cross -review,
the Labour Court’s order dated 4 October 2021 in the rev iew application
shall stand.
8. There is no order as to costs.



JUDGMENT




KOLLAPEN J (Maya CJ, Madlanga ADCJ , Majiedt J, Mhlantla J, Rogers J,
Seegobin AJ, Theron J, Tolmay AJ and Tshiqi J concurring ):


KOLLAPEN J
3 Introduction
[1] This is a rescission application brought by the applicant, Mr Paballo Mothulwe .
His complaint i s that despite bringing a cross -review application before the
Labour Court challenging a finding tha t he was involved in corruption , the
Labour Court failed to adjudicate the cross -review in the proceedings before it. That
Court on ly adjudicated the main review application , brought by his employer, which
was confined to the question of sanction.1

[2] Mr Mothulwe was previously employed b y the fourth respondent, the
Department of Public Works, Roads and Transport, Mpumalanga (Department).
Mr Mothulwe represented himself in all proceedings until the Johannesburg Society of
Advocates (JSA) appointed pro bono counsel , Ms V T Seboko, on his b ehalf at the
request of the Chief Justice on 12 November 2024. The Court is indebted to her and
the JSA for their assistance.

[3] The first respondent is cited as the Labour Court, Johannesburg. The second
respondent is Mr Martin Sambo in his representative capacity as an arbitrator
(Arbitrator) for the third respondent . The third respondent is the General Public Service
Sectoral Bargaining Council (Bargaining Council) . The fifth respondent is cited as the
Judicial Service Committee of South Africa.

Background and litigation history
[4] Mr Mothulwe and Mr Percy Nkambule were employed as transport inspectors
by the Department. Pursuant to an incident on 15 May 2013 , they were charged with
corruption for soliciting a bribe in exchange for not impounding a vehicle that belonged
to an off -duty police officer and for failing to carry out a lawful order or routine
instruction without just and reasonable cause because they were posted in Standerton

1 This refers to the sanction following the finding of guilt for corruption.
KOLLAPEN J
4 but elected to go to Greylingstad .2 Disciplinary proceedings against them were
proceeded with after which they were found guilty and dismissed. They referred a
dispute of unfair dismissal to the Bargaining Council. After an unsuccessful
conciliation, the dispute was referred to arbitrati on.

[5] The arbitration was held on 20 January 2016 and 23 to 24 March 2016. The
Arbitrator considered whether Messrs Mothulwe and Nkambule’s dismissal s were
substantively and procedurally unfair. Regarding the first charge, the Arbitrator found
that they had committed corruption. On the second charge, the Arbitrator found that
the employees did not commit insubordination . In an award dated 11 August 2016, h e
held that the dismissal s were procedurally fair but substantively unfair (award). He
ordered their immediate reinstatement, with the sanction of dismissal replaced with that
of final warning and made no order as to compensation or back -pay as he did not “find
[the] applicants with clean hands”.

[6] The Department then brought an application in the Labour Court in terms of
section 145 of the Labour Relations Act3 (LRA) for an order to review and set aside the
award on the basis that the Arbitrator failed to apply his mind to the issue of sanction .
Messrs Mothulwe and Nkambule brought a cross -review application challenging the
Arbitrator’s finding that they committed an act of corruption (finding) that they be

2 This was under Article 7 of the Code of Good Practice for Dismissals which allows for the establishment of rules
for misconduct. It is headed “Guidelines in cases of dismissal for misconduct” and provides:
“Any person who is determining whether a dismissal for misconduct is unfair should consider —
(a) whether or not the employee contravened a rule or standard regulati ng conduct
in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not —
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have
been aware, of th e rule or standard;
(iii) the rule or standard has been consistently applied by the employer;
and
(iv) dismissal with an appropriate sanction for the contravention of the
rule or standard.”
3 66 of 1995.
KOLLAPEN J
5 issued with a final written warning and that they should not be compensated or receive
back -pay (sanction) . They also brought a condonation application for the late filing of
their cross -review. None of the parties challenged the Arbitrator’s finding regarding
the insubordination charge. In its reasoning , the Labour Court indicated that if it was
to find the a ward reviewable there would be no need to consider the cross -review. Since
it held that the arbitrator’s award was reviewable, it did not consider the cross -review
on its merits and made no order in respect thereof.

[7] The Labour Court ’s judgment of 4 Octob er 2021 concluded that the Arbitrator
committed a reviewable irregularity and set the award aside. It also did “not deem it
wise to remit the dispute to [the Arbitrator] for arbitration de novo [(anew)] ” and on the
evidence before it, substituted the award with a finding that the dismissal of the
employees was procedurally and substantively fair . I emphasise that it did not address
the cross -review (which was about the finding of guilt) . It also did not address nor
decide on the condonation application f or the late filing of the cross -review. Leave to
appeal was refused and so was a petition for leave to appeal before the Labour Appeal
Cour t.

[8] Mr Mothulwe then brought an application for leave to appeal in this Court. The
ground s upon which he relied included a complaint that the Labour Court committed an
irregularity in not considering his cross -review. He expanded upon this by pointing out
that there were two reviews before the Labour Court , the one dealing with the finding
of guilt (his cross -revie w) and the other with the sanction imposed (the main review) ,
and that the Labour Court could not hav e only addr essed the empl oyer’s challenge to
the sanction imposed without first addressing his challenge to the finding of guilt. In
addition, he argued that there was no evidence that implicated him in the alleged act of
corruption that would have warranted a finding of guilt by the Arbitrator.

[9] The Department opposed the application for leave to appeal and on the issue of
the alleged irregularity took th e view that there was none. It argued that if the review
KOLLAPEN J
6 was successful , resulting in the setting aside of the award, which is what occurred, then
once the award was set aside there was nothing left to consider in the cross -review.

[10] This Court refused the application for leave to appeal on 19 July 2022 on the
basis that it did not enjoy reasonable prospects of success .

[11] An application for rescission against the refusal to grant him leave to this Court
was then launched in which Mr Mothulwe persisted with his original complaint that the
Labour Court had erred in not considering and adjudicating his cross -review. That
application was refused on 23 May 2023 on the basis that no case had been made out
for rescission.

In this Court
[12] Mr Mothulwe has now brought the current application as one seeking direct
access in which he continues to place reliance on the arguments he had previously
advanced in the application for leave to appeal as well as the application for rescission.

[13] Mr Mothulwe has represented himself until his final submission s before this
Court. His arguments are couched in the language of a layperson, but they are
sufficiently clear to indicate his grievance that the Labour Court failed to deal with his
cross -review , a self -standing application which went beyond the main review
application . He argues that if the Labour Court had considered his cross -review, it may
well have come to a different conclusion on the merits of his dismissal, despite the
setting aside of the award on the b asis that it did. He contends that this matter falls
“within the ambit of constitutional rights ”, with reference to sections 165(2), 33(1)
and 34 of the Constitution , section 145(2) of the LRA and section 6(2) of the Promotion
of Administrative Justice Ac t.4


4 3 of 2000.
KOLLAPEN J
7 [14] The respondents did not file notices of opposition or affidavits in response to the
application but the Department filed written submissions in response to the directions
mentioned below.

[15] On 7 August 2024, the Chief Justice directed that Mr Mothulwe file an electronic
copy of the complete record before the Labour Court in the review and cross -review.
The Chief Justice also directed the parties to file written submissions addressing the
following issues:
(a) Did the Labour Court consider and adjudica te the cross -review on its
merits and make an order in relation thereto?
(b) If not, is the applica nt entitled to the adjudication of his cross -review?
(c) If so, what order should this Court make?

[16] In Mr Mothulwe ’s submissions in response to the direction s, he again contends
that the Labour Court failed to consider and adjudicate the cross -review on its merits
and the principles of natural justice demand that it ought to be considered. He submits
that, to ensure timely and effective justice, this Court ou ght to adjudicate the merits of
the cross -review rather than remitting it to the Labour Court, given the long duration of
the litigation to date .

[17] The Department filed submissions in response to the directions together with a
condonation application for its late filing. It accepts that the Labour Court did not
consider or adjudicate the cross -review application filed by the applicant , nor ma ke an
order in relation thereto . It says , however , that there was no need for the Labour Court
to consider the cro ss-review as it upheld the review and set aside the award . The
argument continues that once the Labour Court had set aside the award there was
nothing further to review , including the cross -review.

[18] Mr Mothulwe did not file an electronic copy of the record as he said that a lack
of financial means prevent ed him from doing so. As a result, this Court made enquiries
from the Labour Court and that Court kindly provided a hard copy of the record.
KOLLAPEN J
8
[19] On 12 November 2024, the Chief Justice issued further directions to the parties
directing them to address the following issues:
(a) Do exceptional circumstances exist which warrant a rescission of this
Court’s previous orders, in the interests of justice, with reference to
Zuma ?5
(b) If so, should this matter be remitted to the Labour Court, Johannesburg
for determination?

[20] Mr Mothulwe, now represented by pro bono counsel , made the following
submissions:
(a) In Zuma , this Court established that it has the power to interfere with its
earlier orders (a) when the earlier order is inconsistent with the
Constitution; (b) to correct an injustice; and (c) w hen the requireme nts for
rescission in terms of r ule 42 of the Uni form Rules of Court, read with
rule 29 of the Constitutional Court Rules, have been met.
(b) Jafta J in Zuma , writing a minority judgment, clarified that section 172(1)
of the Constitution dispenses with the requirement of exceptional
circumstances in the interest of justice if the impugned order is
inconsistent wit h the Constitution. The majority did not dispute this
interpretation.
(c) The Labour Court failed to consider Mr Mothulwe’s cross -review
application, constituting a “dispute that can be resolved by the application
of law” as per section 34 of the Constitu tion, thus violating section 34.
The Labour Court’s failure to adjudicate the cross -review application
renders its order inconsistent with the Constitution. Section 172(1) of the
Constitution mandates this Court to set aside any order inconsistent with
the Constitution. In the absence of a section 36 analysis, this Court is

5 Zuma v Secretary of the Judicial Commission of Inquiry into Allegation s of State Capture, Corruption and Fraud
in the Public Sector Including Organs of State [2021] ZACC 28; 2021 (11) BCLR 1263 (CC) .
KOLLAPEN J
9 obligated by section 172(1) to set aside its order, even without exceptional
circumstances in the interest s of justice.
(d) Jafta J in Zuma , relying on Molaudzi6 and concurred with by the majority
on this point , held that this Court’s jurisprudence affirms that the
rescission of orders may occur if they result in injustice, even if the
requirements for rescission in terms of rule 42 are not met, through the
exercise of the Court’s inherent power. Khampepe J in Zuma , relying on
Ka Mtuze ,7 held that the interests of justice require that this Court only
exercise s its inherent power to correct an injustice in exceptional
circumstances.
(e) Exceptional circumstances have been found to be linked to the probability
of grave individual injustice or where the administration of justice might
be brought into disrepute if no reconsideration occurs.8 In Molaudzi , the
exceptional circumstances threshold was met partly because the applicant
was “an unrepresented , vulnerable party ”.9
(f) Mr Mothulwe ’s circumstances mirror those of Mr Molaudzi as relevant
to the establishment of exceptional circumstances for purposes of
rescission to prevent injustice. The Labour Court committed an
irregularit y by failing to consider his cross -review application on the
merits. In Morudi ,10 this Court held such an irregularity rendered the
Court’s order rescindable.11 Without legal representation, he did not
know this and was unable to pursue appropriate legal action, which left
him without recourse. To allow him to continue to suffer this injustice
due to his lack of legal representation would be contrary to Molaudz i as
read with Zuma .

6 Molaudzi v S [2015] ZACC 20; 2015 (2) SACR 341 (CC); 2015 (8) BCLR 904 (CC).
7 Ka Mtuze v Bytes Technology Group South Africa (Pty) Ltd [2013] ZACC 31; 2013 (12) BCLR 1358 (CC) .
8 S v Liesching [2018] ZACC 25; 2018 (11) BCLR 1349 (CC); 2019 (4) SA 219 (CC) at para 138.
9 Molaudzi above n 6 at para 38.
10 Morudi v NC Housing Services and Development Co Limited [2018] ZACC 32; 2019 (2) BCLR 261 (CC).
11 Id at paras 27 and 33.
KOLLAPEN J
10 (g) Two distinct requirements must be satisfied for this Court to rescind its
previous order in terms of rule 42 and rule 29: error and absence. The
Labour Court’s failure to c onsider the merits of the cross -review
application constit utes an irregularity of the nature in Morudi , where this
Court held that a procedural irregularity in the High Court which was
found to prevent parties from being heard satisfied the “ error”
requirement in terms of r ule 42(1)(a ).12 Had this Court previousl y been
presented with this defence, it could have come to a different
conclusion.13 In Zuma , this Court held that the absence requirement
relates to whether a party was deprived of a genuine opportunity to
participate due to procedural irregularities. The Labour Court deprived
Mr Mothulwe of a meaningful opportunity to be heard, establishing
effective absence within Zuma ’s framework. Thus the error and absence
requirements are met for rescission in terms of rule 42 read with rule 29.
(h) This Court is reluctant to engage in matters requiring factual analysis,
preferring to remit such cases to lower courts which are better equipped
to resolve such disputes. This Court’s primary function is not to resolve
factual dispute s as a court of first instance.14 This Court cannot rectify
the Labour Court’s failure to consider the cross -review application
without engaging with the facts not currently on record, which it is not
equipp ed to do. Remitting the matter will ensure procedural fairness, a
proper finding o f facts, and will thus serve the interest s of justice because
it allows confidence in the judicial process to be restored. It would also
allow the Labour Court to leverage its specialised expertise, fostering a
more informed and just outcome.


12 Id at para 33.
13 Zuma above n 5 at para 64.
14 Bruce v Fleecytex Johannesburg CC [1998] ZACC 3 ; 1998 (2) SA 1143 (CC) ; 1998 (4) BCLR 4 15 (CC) and
S v Boesak [2000] ZACC 25; 200 1 (1) BCLR 36 (CC) ; 2001 (1) SA 9 12 (CC) .
KOLLAPEN J
11 [21] In response to this Court’s directions, the Department made the following
submissions . On whether exceptional circumstances exist , the Department submits that
it cannot be denied that the Labour Court did not consider or adjudicate the
cross -review , although it did consider a nd adjudicate the main review.

[22] The Department maintain s its view that the Labour Court was correct in dealing
with the review application as it stood, which in turn would inevitably dispose of the
cross -review. This is because, it argues, both reviews arose from t he same award, and
the issues arising therefrom were interrelated. Thus, it was logical for the Labour Court
to find that it would only consider the cross -review if there was no merit in the main
review. But if the Labour Court held that the award was reviewable, then the entire
award would be set aside, and thus there was no need to consider the cross -review. It
argues that on this approach, there would have been no purpose in dealing with the
cross -review, and that dealing with the cross -review despite setting aside the entire
award would have been superfluous.

[23] The Department continues by stating that while it maintain s its initial position,
Zuma makes it apparent that the matter should be considered beyond this. It accepts
that Mr Mothulwe was unre presented at the time the applications for leave to appeal
and rescission were made in this Court and thus may not have presented a legally sound
case. It further accepts that Mr Mothulwe may not have been aware of his constitutional
rights, thus placing him in a similar position to the applicant in Molaudzi . In support of
Mr Mothulwe ’s case, the Department submits that this Court may come to a different
conclusion on the cross -review and representation issue, and that an injustice may arise
without this Court’s intervention.

[24] On this point, the Department finally submits that one could accept that since the
Labour Court was presented with both a review and a cross -review, it would have been
prudent for the Labour Court to consider and pronounce specifically on the
cross -review. It submits that an injustice may be visited upon the applicant and the
administration of justice might be brought into disrepute if this Court does not
KOLLAPEN J
12 reconsider its two previous orders. It states that there m ay well be exceptional
circumstances for this Court to reconsider its earlier orders in the interests of justice .

[25] On whether the matter should be remitted to the Labour Court , the Department
submits that if this Court finds that exceptional circumstances exist for it to reconsider
its previous orders, then th is Court should remit the matter to the Labour Court, and to
Mahosi J (who delivered the judgment which is now before us). It contends that both
the main review and cross -review were argued fully befo re Mahosi J and the
cross -review can thus be considered and adjudicated based on the record. It agrees with
Mr Mothulwe that it would not be appropriate for this Court to deal with the
cross -review.

[26] This Court has decided to finalise the matter without a hearing.

Analysis
Jurisdiction
[27] This matter relates to the application of the LRA , legislation enacted to give
effect to section 23 of the Constitution . In light of this Court’s decision in NEHAWU ,15
such a matter raises a constitutional issue. This matter also relates to the applicant’s
section 34 right to have any dispute that can be resolved by the application of law
decided in a fair public hearing. The alleged failure by the Labour Court to adjudicate
the cross -review application would implicate Mr Mothulwe ’s section 34 right s. This,
too, is a constitutional issue. Finally, the present application raises the question whether
this Court’s previous order s should stand, and that is a matter that only this Court can
address. For these reason s, this Court has jurisdiction to entertain this matter.

[28] In his notice of motion, Mr Mothulwe seeks “direct access to this Honourable
Court”. Although styled as a direct access case, I am of the view that this application

15 National Education Health and Allied Workers Union (NEHAWU) v University of Cape Town [2002] ZACC
27; 2003 (2) BCLR 154 (CC); 2003 (3) SA 1 (CC).
KOLLAPEN J
13 is in substance an application to rescind the previous orders of this Court (the orders
made in the application for leave to appeal and the first rescission application which
followed). Given that the Court has already issued orders in this regard , we are
presented with the issue of res judicata (the matter has already been decided) , a question
to which I will return.

[29] Due to Mr Mothulwe’s unsuccessful application for leave to appeal and the first
rescission application in this Court, a n application of this unique nature was the only
mech anism left available to him.

[30] This matter involves important section 34 rights and centres on the consequence
that must follow when a court fails to adjudicate a justiciable dispute that is brought
before it. The narrow issue involved is purely a legal on e that has merit and was not
previously given the proper consideration it required by th e Labour Cour t, the
Labour Appeal Court or this Cour t. As will become clear, this judgment will not be the
final determination of the matter as a whole, and the possibility of appeal will be
retained. Given the unusual circumstances of this matter and its litigation history , it is
in the interests of justice that this Court re -examine this matter .

Condonation
[31] The Department filed its written submissions eight days late. It submits that the
delay is not excessive and its explanation for the delay is reasonable. The Department’s
counsel was out of the country when the directions were issued until the due date of the
submission s, after which she was participating in a trial and had other practice
obligations. She proceeded to draft the submissions as soon as she had the opportunity
to do so. Because the Department’s counsel had been seized with the matter since
inception and the State Attorney’s procurement process in the appointment of counsel
is lengthy, it contends that briefing alternative coun sel would not have hastened their
submissions. It further submits that the Department’s prospects of success are good, it
is in the interests of justice for this Court to consider its submissions and no prejudice
would be suffered by Mr Mothulwe if condon ation is granted. There has been n o
KOLLAPEN J
14 opposition to the condonation application. I am of the view that it is in the interests of
justice to grant the Department condonation for the late filing of its written submissions
for the reasons it sets out . Condon ation is granted.

Res judicata
[32] Applying for the third time to this Court, Mr Mothulwe contends that this Court
was incorrect in refusing leave to appeal, and in refusing rescission of th e decision to
refuse leave to appeal . The challenge Mr Mothulwe is faced with is the existence of
two orders of this Court which held against him : first, the order refusing his application
for leave to appeal (first order) ; and second, the order refusing his application to rescind
the first order (second order). Since Mr Mothulwe’s current application is in essence
precisely the same as that resulting in the first and second order s, this application runs
into the principle of res judicata .

[33] This Court in Molaudzi dealt extensively with the principle and its import, al beit
in the context of a criminal mat ter. The exception to the principle, that the rule ought
not be applied with absolute rigidity, was also fully canvassed. The starting point is
section 173 of the Constitution, which states:

“The Constitutional Court , the Supreme Court of Appeal and the High Court of South
Africa each has the inherent power to protect and regulate their own process, and to
develop the common law, taking into account the interests of justice .”

[34] The lodestar is the interests of justice.16 And given that res judicata is a common
law principle, this Court can develop and relax it if doing so will be in the interests of
justice. Whether relaxing the rule will be in the interests of justice must be determined
on a case -by-case basis.17 Whil e the question whether this Court could reconsider its
own orders was left open, this Court explored the possibilities of such a relaxation of

16 Mukkadam v Pioneer Foods (Pty) Ltd [2013] ZACC 23; 2013 (5) SA 89 (CC); 2013 (10) BCLR 1135 (CC) at
paras 32-4.
17 See, for example, Children’s Resource Centre Trust v Pioneer Foods (Pty) Ltd [2012] ZASCA 182; 2013 (2)
SA 213 (SCA) at para 15.
KOLLAPEN J
15 res judicata in Ka Mtuze .18 This Court in Molaudzi , relying on what was said in
Ka Mtuze , said this:

“The incremental and conservative ways that exceptions have been developed to the
res judicata doctrine speak to the dangers of eroding it. The rule of law and legal
certainty will be compromised if the finality of a court order is in doubt and can be
revisited in a substantive way. The administration of justice will also be adversely
affected if parties are free to continuously approach courts on multiple occasions in the
same matter. However, legitimacy and confidence in a legal system demand that an
effective remedy be provided in situations where the interests of justice cry out for one.
There can be no legitimacy in a legal system where final judgments, which would result
in substantial hardship or injustice, are allowed to stand merely for the sake of rigidly
adhering to the principle of res judicata .”19

[35] This Court can thus only consider whether to rescind the second order if it is in
the interests of justice to reconsider Mr Mothulwe’s rescission application. It would be
so if the circumstances are wholly exceptional to j ustify a departure from the
res judicata doctrine.20 And “ [t]he interests of justice are the general standard, but the
vital question is whether there are truly exceptional circumstances”.21 Such would
include, as was the case in Molaudzi , where a failure to reconsider the matter would
result in a failure to give effect to a constitutional right and would result in a grave
injustice ,22 or if there was an irregularity in the proceedings which resulted directly in
the infringement of a constitutional right.23


18 This Court in Ka Mtuze above n 7 at para 19 held:
“If the position were to be that this Court does have power outside of rule 29 read with rule 42
to reconsider and, in an appropriate case, change a final decision that it had already made, one
can only think that that would be in a case where it would be in accordance with the interests of
justice to re -open a matter in that way. The interests of justice would require that that be done
in very exceptional circumstances.”
19 Molaudzi above n 6 at para 37.
20 Id at para 38.
21 Id.
22 Id at para 42.
23 Morudi above n 10 at para 27 and Van der Walt v Metcash Trading Ltd [2002] ZACC 4 ; 2002 (4) SA 317 (CC) ;
2002 (5) BCLR 454 (CC) ( Metcash ) at para 14.
KOLLAPEN J
16 [36] Mr Mothulwe brought a cross -review in the Labour Court to challenge the
Arbitrator’s finding of guilt. The Labour Court did not consider the cross -review after
it had adjudicated the review. Its reason for doing so was that in t he event of it
upholding the review there would be no need to consider the cross -review . This
approach is fatally flawed . A court cannot simply refuse to consider a challenge
directed at guilt if it finds reason to interfere with a challenge directed at sanction. Since
the sanction must follow from the finding of guilt, and since the finding itself was
challenged, the only appropriate approach was to consider the challenge to the finding
of guilt first. The outcome of the challenge to the finding of gui lt would then inf orm
the challenge on sanction.

[37] The Labour Court reviewed the award, and then replaced it with its own decision
which spoke to both the finding of guilt and sanction. The Labour Court’s order, which
implicitly upheld the finding of guilt, did so in respect of an issue it did not adjudicate
(or, it refused to adjudicate that issue as a consequence of its approach). Its approach,
together with its order, was highly irregular. An error like this is truly exceptional in
that the flawed reasoning of that Cour t had the result of precluding i t from adjudicating
a justiciabl e dispute that was properly before it and one which it was obliged to
adjudicate. This Court in Metcash held that the right of access to court would be
implicated if there is an irregularity in the manner a case was dealt with.24 This case
falls squarely into that category.

[38] Mr Mothulwe’s cross -review simply did not enjoy the attention of the
Labour Court on account of this approach, which I find was grossly irregular, unfair
and contrary to the principles of natural justice . That position continue s to be a denial
of his right of access to court . A manifest injustice would be left unattended if this
oversight is not corrected. A finding of guilt on a seriou s charge of corruption would
remain in place permanently with all the attendant negative consequences that go with
it. This, under circumstances whe re a proper challenge was brought against that finding

24 Metcash id at para 14.
KOLLAPEN J
17 and simply not considered on its merits. It is high ly unusual for the Labour Court to
simply refuse to consider the merits of a cross -review based on a finding of misconduct
properly brought before it, not for any lawful or logical reason. This is a truly
excepti onal circumstance that warrants proper consideration of Mr Mothulwe ’s
complaint.

Rescission
[39] A rescission would ordinarily occur within the bounds of rule 42 of the
Uniform Rules read with rule 29 of this Court’s Rules. Rule 42(1) provides for a
rescission under the following circumstances:
(a) an order or judgment erroneously sought or erroneously granted in the
absence of any party affected thereby;
(b) an order or judgment in which there is an ambiguity, or a patent error or
omission, but only to the extent of such ambiguity , error or omission; or
(c) an order or judgment granted as the result of a mistake common to the
parties.

[40] Rule s 42(1)(b) and (c) are clearly not applicable to the facts of this case . Only
rule 42(1)(a) appears to have the potential to be applicable. However , any reliance on
rule 42(1)(a) runs into the difficulty that what is contemplated is an order granted in the
absence of any party . In this case, that jurisdictional requirement would not be met. As
these matters have been decided on the papers, Mr Mothulwe’s absence in the
proceedings remains an unmet requirement. In fact, he was the applicant in both matters
in this Court and it cannot be said that those orders were granted in his absence. The
effect of this is that rule 42(1)(a) cannot be relied on to rescind the first order .

KOLLAPEN J
18 [41] Traditional common law rescission grounds are also not open for us to explore.
Rescission in terms of the common law requires an applicant to prove that there is
“sufficient” or “good cause” to warrant res cission. As per Fick:25

“[T]he requirements for rescission of a default judgment are twofold. First, the
applicant must furnish a reasonable and satisfactory explanation for its default. Second,
it must show that on the merits it has a bona fide defence which prima facie carries
some prospect of success. Proof of these requirements is taken as showing that there
is sufficient cause for an order to be rescinded. A failure to meet one of them may
result in refusal of the request to rescind.”26

Mr Mothulw e is not in default, so the traditional common law rescission requirements
are thus not met.

[42] Finally, there is the possibility of a rescission based on the interests of justice ,
which is informed by the jurisprudence on res judicata . In Ka Mtuze , this Co urt
categorically stated that if this Court had the power , outside of rule 29 read with rule 42,
to reconsider or change a decision that it had already made, then that would only be
where the int erests of justice demand the re -opening of a case in that man ner, and that
the interests of jus tice would only require such re -opening to be done in “very
exceptional circumstances”.27

[43] This Court in Molaudz i developed this position further, stating that an effective
remedy must be provided if the interests of justice cry out for one and that there “can
be no legitimacy in a legal system where final judgments, which would result in
substantial hardship or inju stice, are allowed to stand merely for the sake of rigidly
adhering to the principle of res judicata ”.28 Echoing the proviso in Ka Mtuze , this Court

25 Government of the Republic of Zimbabwe v Fick [2013] ZACC 22; 2013 (5) SA 325 ( CC); 2013 (10) BCLR
1103 (CC) .
26 Id at para 85.
27 Ka Mtuze above n 7 at para 19.
28 Molaudzi above n 6 at para 37.
KOLLAPEN J
19 held that the circumstances must be “wholly exceptional”.29 I read this as confirmation
that this Court is entitled to intervene and set aside its own decision if the result of that
order leads to “substantial hardship” or injustice and if the circumstances are “truly
exceptional”. It was on this basis that this Court in Molaudzi “relaxed” the principle of
res judicata , and re-opened the matter, to come to the aid of an unrepresented litigant
who would have suffered a “grave injustice”.

[44] In Zuma , this Court considered whether the interests of justice required this Court
to “expand the grounds of rescission” to allow for a rescission in the interests of justice
that fall outside the scope of rule 42.30 Relying on Ka Mtuze and Molaudzi , this Court
held that it might be open to reconsider Mr Zuma’s contempt order if it would be in the
interests of justice to do so. It then considered what would constitute exceptional
circumstances justifying an intervention in the contempt order in the interests of j ustice,
to determine whether Mr Zuma’s case met this high threshold. Exceptional
circumstances entail considering the probability of grave individual injustice and the
possibility that the administration of justice might be brought into disrepute. This Court
concluded that it would not be in the interests of justice for this Court to expand the
definition of “error” to provide for any allegation of unconstitutionality because the
development of the grounds of rescission would have profoundly detrimental effects on
legal certainty and the rule of law.31 It went on to say “[w]e must ponder the possible
outcomes of doin g so carefully, for if we do not, this Court might soon find itself
inundated with similarly unmeritorious applications, all raising any number of
allegations of unconstitutionality”.32

[45] While Zuma closed the door to granting rescission to Mr Zuma because i t was
not in the interests of justice to do so in that case, it is still possible that the Court could

29 Id at para 38.
30 Zuma above n 5 at paras 86-96.
31 Id at para 99.
32 Id.
KOLLAPEN J
20 do so in another case after careful pondering of the consequences, as this Court did in
Molaudzi .

[46] This is consistent with what this Court said recently in R v R.33 Citing Zuma ,
this Court stated that “a court should only allow a rescission . . . of an order in
exceptional circumstances”.34 This principle only applies to orders falling outside of
rule 42 becaus e “a court does not have a discretion to set aside an order in terms of
rule 42 where one of the jurisdictional facts contained in rule 42(1)(a) -(c) [does] not
exist”.35 R v R confirms that, for cases falling outside the scope of rule 42, this Court is
entitled to intervene in its own previous order in the same case if it is in the interests of
justice and in truly exceptional circumstances.

[47] Herein lies the relationship between res judicata and rescission in cases falling
outside rule 42(1) , since rescission is about a court undoing its own previous (final)
order, and res judicata is about a court not intervening in its own previous orders , with
the exception being that a court can do so in the interests of justice and in truly
exceptio nal circumstances. Simply put, the principle of res judicata and the exceptions
thereto enable a Court to properly moderate its power to rescind its orders outside of
the power granted to it by rule 42(1).

[48] The question then is whether Mr Mothulwe’s appli cation meets the interests of
justice and truly exceptional circumstances tests in respect of both orders of this Court .
Is the flawed manner in which the Labour Court dealt with his cross -review truly
exceptional? Yes. I have explained above why this i s so.

[49] Does the flawed disposition of his cross -review “cry -out”36 for an effective
remedy, in the interests of justice? The effect of the Labour Court’s judgment and the

33 R v R [2023] ZACC 5; 2023 (9) BCLR 1126 (CC) .
34 Id at para 51.
35 Id.
36 Molaudzi above n 6 at para 37.
KOLLAPEN J
21 setting aside of the award is that Mr Mothulwe ’s finding of guilt for corruption has been
upheld . This finding, particularly given Mr Mothulwe’s previous employment as a
transport inspector, is a serious charge that has no doubt affected his employment
prospects, both in the public and private sectors. He remains unemployed to this day.
Due to his consequent indigence, Mr Mothulwe has not had legal representation until
the very final stages of these proceedings and has been limited to his layman’s
submissions. A part from this Court reconsidering the appeal, there is no effective
alterna tive remedy for Mr Mothulwe.

[50] If this Court could not entertain this application, he would be denied his right of
access to courts due to the Labour Court’s oversight in not adjudicating his cross -review
and due, it must be frankly acknowledge d, to this Court’s failure , when making the first
and second orders, to discern the true justice of his case , a failure that might have been
attributable to the fact tha t his papers were drafted without the benefit of legal
representation.

[51] A serious injust ice will result from denying Mr Mothulwe the opportunity to
have the merits of his cross -review considered by a court . A manifest injustice would
arise if a court were allow ed to summarily dismiss a cross -review on the flawed
reasoning that it did not need the attention of the court . Allowing this Court’s previous
orders to stand would result in a situation where a claim properly brought would simply
not be adjudicated for reasons that are indefensible. This would be inimical to the right
of access to co urt, which guarantees the right to have a justiciable dispute resolved by
the application of law in a fair public hearing before a court.37 And as this Court said
in Chief Lesapo ,38 “very powerful considerations would be required for its limitation to
be reasonable and justifiable”.39


37 Le Roux v Johannes G Coetzee and Seuns [2023] ZACC 46; 2024 (4) SA 1 (CC); 2024 (4) BCLR 522 (CC) at
para 29.
38 Chief Lesapo v North West Agricultural Bank [1999] ZACC 16; 1999 (12) BCLR 1420 (CC); 2000 (1) SA 409
(CC).
39 Id at para 22.
KOLLAPEN J
22 [52] Allowing th e situation to remain unaddressed would also imperil the
administration of justice in that it would effectively leave a litigant who has a justiciable
dispute in perpetual limbo. The interests of justice require Mr Mothulwe’s cross -review
to be considered. This Court must under such circumstances be open to considering his
application for leave to appeal without it being hamstrung by the principle of
res judicata .

Merits
[53] In Afrocentrics40 this Court held:

“A cour t must effectively dispose of the dispute that has come before it, and in doing
so, it must act in accordance with its powers relative to the matter at hand. This is after
all what provides the certainty and finality that parties seek when they bring a di spute
to a court.
The right of access to courts found in section 34 of the Constitution is a right to have a
justiciable dispute decided by a court. A judgment gives insight into the reasoning of
the Court, how it dealt with the different and often compet ing submissions before it,
and why it came to a particular conclusion. However, it is ultimately the order of the
court that brings finality to the proceedings and says to the parties what is required of
them or declares what their rights are.”41

[54] The Department accepts that had Mr Mothulwe been properly represented, this
Court may have come to a different conclusion, specifically on the prospects of success
in the condonation application and in granting leave to appeal . However, the
Department maintai ns the position , without concession, and “in fairness and ope n to
acceptable interpretations”, it accept s that the Labou r Court could have been more
specific in dealing wi th the cross -review . The Department maintains that in dealing
with the matter in the manner that it did, the Labour Court did so in a logical manner.
It submits that the Labour Court therefore deemed it prudent to deal with the matter

40 Afrocentrics Projects and Services (Pty) Ltd t/a Innovative Distribution v State Information Technology Agency
(SITA) SOC Ltd [2023] ZACC 2; 2023 (4) BCLR 361 (CC).
41 Id at p aras 28-9.
KOLLAPEN J
23 holistically , which was a logical approach , for the reason that had it found that there
was no merit to the review application . Simply put, the Department argues that having
upheld the review , the Labour Court set the award aside with the result that there was
nothing left to cross -review.

[55] In addressing this line of reasoning , which is formalistic in the e xtreme , it is
necessary to recall that there was a review and a cross -review before the Labour Court.
The review dealt with the sanction (in other words, it assumed guilt but challenged the
mildness of the sanction) , while the cross -review challenged the finding of guilt. By
dealing with the review on sanction first, and disposing of the matter on this basis, the
finding of guilt was left in place . This is a problem since it was that same finding of
guilt that was being challenged in the same proceed ings.

[56] In contrast , if the cross -review was successful and the finding of guilt was set
aside , there would be no need to deal with the sanction which was the subject of the
review. In a criminal appeal against conviction and sentence, a court would ordina rily
decide the appeal against conviction first, and if t he appeal on conviction is successful
and the conviction is set aside, there would be no need to deal with the appeal against
sentence. It would , however, not be acceptable for an appeal court to de al with the
appeal aga inst sentence , and then having done so , not address the appeal aga inst
convicti on. This is the effect of the approach of the Labour Court in its failure to address
the cross -review. Mr Mothulwe was entitled to have his challenge a gainst the finding
of gu ilt adjudicated , which was embodied in the cross -review . This simply did not
happen.

[57] The argument that there was nothing left to review after the Labour Court had
set aside the award plac es form rigidly and unacceptably over subst ance. In setting
aside the award , the Labour Court did not , by doing so , adjudicate the cross -review.
The setting aside of the aw ard was in substance a setting aside of the sanction and its
replacement with a differen t sanction. It did not set aside the finding of guilt, even
though in form it may be argued that it did . At best an d even if it could be said that it
KOLLAPEN J
24 did, it simply proce eded to reinstate the finding of guilt without addressing the challenge
to that very same finding . There is no other logical explanation for its actions and it
cannot be open to the Department to argue that the Labour Court could not address the
cross -review once it had set aside the award.

[58] The Court addressed in some detail the question of sanction , but there is nothing
in its judgment that suggest s that it applied its mind to the question of guilt , which it
accepts was the subject matter of the cross -review . It was in law required and obliged
to adjudicate the c ross-review and to provide reasons fo r either upholding or rejecting
it. This Court has held that “[a] judgment gives insight into the reasoning of the court,
how it dealt with the different and often competing submissions before it, and why it
came to a particular conclusion ”.42 The Labour Court’s failure to provide reasons for
its disregard of the cross -review must mean that Mr Mothulwe’s right , in terms of
section 34 to have his justiciable dispute resolved , remain s unfulfilled and must be
addressed.

[59] What remains is whether this Court should consider the cross -review or refer the
matter to the Labour Court for adjudication . Mr Mothulwe initially urged us to

42 Id at para 29. In S v Molawa; S v Mpengesi 2011 (1) SACR 350 (GSJ) ( Molawa ) at para 17, although in the
context of criminal proceedings, the Court explained succinctly:
“[I]f a trial court does not furnish reasons for its findings in the form of a reasoned judgment,
the reviewing judge would be disadvantaged in applying the test as to whether the proceedings
were in accordance with justice. The reviewing judge would be compelled to call for such
reasons.”
Molawa at para 18 goes on to quo te the following from Corbett CJ, “Writing a Judgment: Address at the First
Orientation Course for New Judges” (1998) 115 SALJ 116 at 11 7:
“As a general rule, a court which delivers a final judgment is obliged to give reasons for its
decision. This applies to both civil and criminal cases. In civil matters this is not a statutory
rule but one of practice. In Botes and Another v Nedbank Ltd the Appellate Division held that
where a matter is opposed and the issues have been argued, litigants are entitled to be informed
of the reasons for the judge’s decision. The court pointed out that a reasoned judgment may
well discourage an appeal by the loser; and the failure to state reasons may have the opposite
effect, that is, encourage an ill -founded appeal. In addit ion, should the matter be taken on
appeal, the court of appeal has a similar interest in knowing why the judge who heard the matter
made the order which he did. But there are broader considerations as well, in my view, it is in
the interests of open and p roper administration of justice that the courts state publicly the reasons
for their decisions. Whether or not members of the general public are interested in a particular
case – and quite often they are – a statement of reasons gives some assurance that the court gave
due consideration to the matter and did not act arbitrarily. This is important in the maintenance
of public confidence in the administration of justice.”
KOLLAPEN J
25 adjudicate the cross -review , given the amount of time that has elapsed in the ongoing
litigation in this matte r. But it was later argued on his behalf that a remittal to the
Labour Court would be appropriate for an adjudication of his cross -review. I am not
persuaded that this Court should adjudicate the cross -review . It is not ordinarily in the
interests of ju stice for this Court to be a court of first and last instance. It has not hear d
argument on the meri ts of the finding of corruption , even though Mr Mothulwe has gone
to some lengths to argue why the finding of guilt is not sustainable . We would
effective ly be addressing the merits at the first instance, which is undesirable. In all of
this I make no comment as to th e merits of Mr Mothulwe’s cross -review application ,
save to say that in the light of the record that this Court obtained from the Labour Cour t,
the cross -review cannot be said to be hopeless, and it deserves proper consideration .

[60] The Department requested that, if remitted, the cross -review be dealt with by the
same judge (Mahosi J) who determined the main review and that the cross -review be
dealt with on the basis of the record (so that the cross -review is not re -argued).
Mahosi J, writing for the Labour Court, has already expressed a cursory view on the
merits of the cross -review, despite not fully considering and adjudicating it. It is out of
an abundance of caution that this Court holds that the cross -review should be considered
and adjudicated upon by another judge. As the matter will be determined by another
judge, it would be proper that full argument be advanced in respect of the cro ss-review
so that the presiding judge has an opportunity to hear both parties fully and pronounce
freely on the matter.

[61] This matter raises sharply the principle of finality and the inherent danger of
ongoing and unending litigation when courts are enjoine d to reconsider orders
previously made by them . Of course that is a salutary principle but not one that must
always be rigidly applied , particularly when to do so will result in a manifest injustice
and tarnish the integrity of the administration of justi ce. There are those cases where
exceptional circumstances exist and the interests of justice call for a remedy. When that
happens a court then advances the principles and ideals of the Constitution. If not , those
principles stand to be undermined largel y in the interests of finality. This has never
KOLLAPEN J
26 been a feature of our constitutional order. Finally , and in response to concerns that
courts will be inundated with requests to reconsider orders previously made by them ,
the simple answer must be that the h igh threshold of truly exceptional circumstances ,
coupled with the interests of justice , remain s a valid moderating tool to manage such
outcomes if they should occur. Litigants who abuse this safety net, which exists to
remedy injustice in truly exception al cases, should expect short shrift from this Court
and should not be surprised when they are mulcted in punitive costs.

Costs
[62] The application was unopposed . However, the Department file d written
submissions and did not seek costs for its preparation of those submissions . No order
of costs is warranted .

Conclusion
[63] Mr Mothulwe’s application for rescission must be granted. He must be granted
leave to appeal against the Labour Court’s failure to decide his cross -review, and the
appeal must succeed, with the appropriate remedy being remittal to the Labour Court.

[64] The Arbitrator’s award in substance contained two findings in its conclusion that
the dismissal was substanti vely unfair and procedurally fair. The findi ng of guilt was
upheld. The sanction for dismissal was replaced with that of a final written warning
and an order was made for Mr Mothulwe to be reinstated immediately . No order on
compensation or back pay was made because the A rbitrator found Mr Mothulw e
without “clean hands”. The review dealt with the sanc tion of dismissal and the
cross -review dealt with the finding of guilt. The Labour Court, having upheld the
review, set aside the entire award but in substance only adjusted the sanction of
dismissal . Practically, the Labour Court ought not have set aside the entire award
(incorporating both conc lusions) until the cross -review was dealt with.

KOLLAPEN J
27 [65] However, we are not required to interfere with the Labour Court’s decision
regarding sanction. In setting aside the Labour Court’s order, we only do so insofar as
it relates to the finding of guilt . If the cross -review is ultimately successful in the
Labour Court, the finding on sanction in the main review will become academic. If the
cross -review is unsucce ssful, the Labour Court’s decision on the review in relation to
sanction will continue to remain valid and operative. However, since no order should
have been made on the review until the cross -review was determined, the
Labour Court’s order reviewing and setting aside the award should itself be set aside,
on the basis however that the Labour Court’s proposed order on the review will apply
if the cross -review fails.

Order
[66] The following order is made:
1. This Court ’s order in CCT 80/22 dated 23 May 2023 is rescinded .
2. This Court ’s order in CCT 80/22 dated 19 July 2022 is rescinded .
3. Leave to appeal the decision of the Labour Court dated 4 October 2021 is
granted.
4. The appeal is upheld on the basis set out below .
5. The applicant’s cross -review application in respect of the finding of guilt
and the condonation application for the late filing thereof are referred to
the Labour Court for determination by another judge.
6. If the Labour Court grants the applicant condonation, upholds the
cross -review and sets aside the arbitrator’s finding of guilt , the
Labour Court’s order dated 4 October 2021 in the review application (in
respect of sanction) shall fall away.
7. If the Labour Court refus es condonation or dismisses the cross -review,
the Labour Court ’s order dated 4 October 2021 in the review application
shall stand.
8. There is no order as to costs.

For the Applicant:


For the Fourth Respondent: V T Seboko


S Tilly instructed by the Office of the
State Attorney , Pretoria