IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: 2025- 019807
In the matter between:
RAILWAY SAFETY REGULATOR Applicant
and
BUSISIWE BRENDA MABANGA First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
CHARLES NAKEDI MACHAKA N. O Third Respondent
Heard: 18 March 2025
Delivered: 25 March 2025
This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time f or hand- down is deemed to be on 25 March 2025.
JUDGMENT
2
MAFA -CHALI , AJ
Introduction
[1] In this opposed urgent application, the applicant seeks an order staying the
arbitr ation proceedings before the second respondent, the Commission for
Conciliation , Mediation and Arbitration (CCMA), pending the final determination of an
application to review and set aside a condonation ruling issued by CCMA
Commissioner David Sello on 9 September 2024.
[2] The applicant is challenging the jurisdiction of the CCMA to proceed with the
arbitration proceedings on 27 March 2025 when the condonation ruling is currently the subject of a review application.
[3] On that basis, the applicant requested this C ourt to stay the arbitration
proceedings until the finalisation of the review application .
Background
[4] The first respondent referred a dispute of unfair dismissal to the CCMA on 27
July 2022. The dispute remained unresolved and subsequently referred to
arbitration.
[5] The arbitration hearing was enrolled for 6 February 2023 and the first
respondent withdrew the dispute by completing the withdrawal notice stating that she did not want to take the case any further. On 25 April 2024, the first respondent
delivered an application for the condonation of her re- referral to arbitration.
Commissioner David Sello entertained the first respondent’s condonation applic ation
and granted a ruling in favour of the first respondent.
3
[6] On 26 September 2024, the applicant sent an email correspondence to the
CCMA indicating that the applicant has instructed its legal representatives to institute
the review proceedings at the Labour Court to review and set aside the condonation
ruling and requested that the arbitration be kept in abeyance pending the initiation and finalisation of the review proceedings. No response was received from the
CCMA.
[7] On 21 October 2024, the applicant instituted the review proceedings under
case number JR1895/24 seeking an order to review and set aside the condonation
ruling. The review application is still pendi ng before this C ourt.
[8] On 2 December 2024, the applicant’s attorneys again dispatched an email
correspondence to the CCMA advising that the applicant requested the CCMA on 26
September 2024 to hold the arbitration proceedings in abeyance pending the
initiation and finalisation of the review proceedings. Again, no response was received
from the CCMA. [9] The CCMA scheduled the arbitration process o n 27 November 2024 which is
to be held on 14 January 2025. On 14 January 2025, both the applicant and the first
respondent attended the arbitration process, and the applicant made an application
for the postponement of the arbitration process based on two reasons. Firstly, on the
basis of the pending review application, and secondly on the basis that the
applicant’s legal representative, Ms Sibiya was booked off due to ill- health.
[10] It is clear that the Commissioner granted the postponement and rescheduled
the arbitration process to an agreed date of 27 March 2025 due to the unavailability
of the applicant’s l egal representative not on the basis of the pending review
application.
[11] The arbitration process is sche duled to proceed on 27 March 2025 and
hence the applicant approached this Court on an urgent basis to stay the arbitration
pending the finalisation of the review application, instituted under case number
JR1895/24.
4
[12] The urgent application was enrolled for hearing in this Court on 18 March
2025 and was opposed by the first respondent. I will have to consider whether based
on the facts placed before this Court , I am satisfied that the application is an urgent
one to be dealt with as such; and whether the application has met the requirements
of an interim relief to stay arbitration proceedings.
Urgency
[13] The Court may at its discretion under Rule 8 of the Rules of this Court
1, relax
or shorten t he strict formal rules relating to time for service, and treat an application
as urgent. In such applications, the applicant is required to first, set out explicitly in
the founding papers, the circumstances which the party avers, renders the matter
urgent and secondly, to also explicitly advance the reasons why it claims that it could
not be afforded substantial redress if it had brought the matter to Court by way of an
ordinary non- urgent procedure.
[14] Whether the applicant will be able to obtain substantial redress in due course
is dependent on the facts and particular circumstances of each case
2. An urgent
relief may be refused in circumstances where the matter has become urgent owing
1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.
2 See East Rock Trading 7 (Pty) Ltd and another v Eagle Valley Granite (Pty) Ltd and others (2012)
JOL 28244 (GSJ); [2011] ZAGPJHC 196 at paras 6 and 7; See also Export Development Canada and
Another v Westdawn Investments Proprietary and Others [2018] ZAGPJHC 60; [2018] 2 All SA 783
(GJ) at para 11; and Mogalakwena Local Municipality v Provincial Executive Council, Limpopo and
others (2014) JOL 32103 (GP); [2014] ZAGPPHC 400 at para s 64 and 65 , where it was held:
‘It seems to me that when urgency is an issue the primary investigation should be to
determine whether the applicant will be afforded substantial redress at a hearing in due
course. If the applicant cannot establish prejudice in this sense, the application cannot be
urgent.
Once such prejudice is established, other factors come into consideration. These factors include (but are not limited to): Whether the respondents can adequately present their cases in the time available between notice of the application to them and the actual hearing, other
prejudice to the respondents and the administration of justice, the strength of the case made
by the applicant and any delay by the applicant in asserting its rights. This last factor is often called, usually by counsel acting for respondents, self -created urgency. ’
5
to dilatoriness on the part of the applicant, since the primary objective of approaching
a Court on an urgent basis is to prevent a harm or prejudice from occurring3.
[15] The applicant argued that it has sufficiently demonstrated why the matter
must be heard on an urgent basis. It was submitted that f irstly, because the first
respondent has not disputed that the arbitration proceedings are set down for 27
March 2025; secondly that the matter will proceed on that day; thirdly that should the
matter proceed it will take away the applicant’s statutory right to subject the jurisdictional ruling on review as such right to review would be rendered more academic if the interim interdict is not granted; and lastly if the applicant was to seek
the relief sought in the notice of motion i n the ordinary court, the application would be
heard after 27 March 2025 and therefore the Court would not be able to restore the
applicant’s right to challenge the jurisdictional ruling of the CCMA thereby infringing upon the applicant’s rights as provided in Section 34 of the Constitution
4
(Constitution) . An urgent relief may be refused in circumstances where the matter
has become urgent owing to dilatoriness on the part of the applicant .
[16] However, the first respondent submitted and argued that the applicant has
failed to substantiate grounds necessary for the relief sought on urgency as the urgency is self -created in that the applicant on its own admission was aware that the
arbitration proceedings were set down on 14 January 2025 as far back as 7
November 2024 but only launched the urgent application on the 11
th hour. The first
respondent further argued that the applicant had ample time to address this matter in
a timeous manner in the light that the urgent application is underpinned by a review
application which it believed had no merits and prospects of success , and therefore
granting the urgent application would not be in the interests of justice but against the
expeditious resolution of disputes.
[17] In this matter it can not be said that the applicant brought this application in
the last hour thereby making the urgency self -created under the circumstances ,
taking into account that the applicant addressed correspondence to the CCMA twice
3 See Golding v HCI Managerial Services (Pty) Ltd and others [2015] 1 BLLR 91 (LC) ; [2014] ZALCCT
52 at para 24; Ntozini and Others v African National Congress and Others [2018] ZAGPJHC 415;
[2019] JOL 43820 (GJ) at para 11.
4 Constit ution of the Republic of South Africa, 1996.
6
on 26 September 2024 and again on 2 December 2024, before making a formal
application for a postponement on 13 January 2025, requesting to stay the arbitration pending the finalisation of the review application.
Section 158(1B) and the relief sought
[18] Section 158(1B) of the Labour Relations Act
5 (LRA) provides that:
‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.’
[19] It is clear that the purpose of this section is to prevent the delays caused by
review applications brought prior to the finalisation of a dispute. This Court is
generally very reluctant, to entertain reviews of rulings made during those
proceedings prior to the conclusion of the arbitration proceedings, as willingness to
easily entertain such applications may allow even those parties with delaying tactics
not to proceed with the arbitration. T he wording of section 158(1B) is that the Labour
Court is constrained from reviewing interlocutory rulings and should only do so when it is just and equitable to review a ruling before the final determination of the dispute. Therefore, t his Court should be extremely slow to intervene in arbitration
proceedings before the CCMA or bargaining council that have not been completed.
[20] On the basis that section 158(1B) allows for the review of a ruling made
during arbitration proceedings prior to the finalisation of the dispute if it is just and equit able to do so, the applicant must establish that it would be just and equitable for
the Court to intervene by entertaining the application to review and set aside the arbitrator’s jurisdictional ruling.
5 Act 66 of 1995, as amended.
7
[21] In casu, the applicant seeks an interim order to stay the arbitration
proceedings, pending the determination of the review application ultimately to be
decided by the review Court. The applicant acknowledges that it is generally not
desirable to have a piecemeal review however when it is just and equitable to do so,
the provisions of section 158(1B) may be invoked by the Labour Court at its
discretion to review the decision even if the issue in dispute has not been finally
determined. However, the first respondent’s view is that the applicant ’s reliance on
section 158(1B) is misplaced as that section is very clear that t he Labour Court may
not review a decision made by CCMA during the conciliation or arbitration process
before the final issue in dispute has been determined; and therefore the
Commissioner’s condonation ruling cannot be a subject of review at this stage as it is
premature.
[22] The requirements for interim relief , as sought by the a pplicant in casu, have
already been set out in Setlogelo v Setlogelo
6. They are:
22.1 a prima facie right;
22.2 a well- grounded apprehension of irreparable harm if interim relief is
not granted and the ultimate relief is eventually granted;
22.3 the balance of convenience in favour of the granting of the interim
relief; and 22.4 the absence of any other adequate ordinary remedy.
[23] In the well- known authority in relation to the application of this test in
Webster v Mitchell
7, the Court held as follows:
‘In an application for a temporary interdict, applicant’s right need not be shown by a balance of probabilities; it is sufficient if such right is prima facie
established, though open to some doubt. The proper manner of approach is to take the facts as set out by the applicant together with any facts set out by the respondent which applicant cannot dispute and to consider whether, having regard to the inherent probabilities, the applicant could on those facts obtain final relief at a trial. The facts set up in contradiction by respondent
6 1914 AD 221 at 227.
7 1948 (1) SA 1186 (W) in the headnote.
8
should then be considered, and if serious doubt is thrown upon the case of
applicant he could not succeed.
In considering the harm involved in the grant or refusal of a temporary
interdict, where a clear right to relief is not shown, the Court acts on the balance of convenience. If, though there is prejudice to the respondent, that
prejudice is less than that of the applicant, the interdict will be granted,
subject, if possible, to conditions which will protect the respondent.’
[24] In order to establish a prima facie right, an applicant must provide prima
facie proof of facts that establish the existence of a right in terms of the substantive
law. An applicant must also establish a well -grounded apprehension of irreparable
harm if interim relief is not granted and it ultimately succeeds in establishing its right.
The balance- of-convenience requirement, as well as its interrelationship with the
requirement of a prima facie right, was explained in Olympic Passenger Service (Pty)
Ltd v Ramlagan
8:
‘The expression “ prima facie established though open to some doubt” seems
to me a brilliantly apt classification of these cases. In such cases, upon proof of a well grounded apprehension of irreparable harm, and there being no
adequate ordinary remedy, the C ourt may grant an interdict – it has a
discretion, to be exercised judicially upon a consideration of all the facts.
Usually this will resolve itself into a nice consideration of the prospects of success and the balance of convenience – the stronger the prospects of
success, the less need for such balance to favour the applicant: the weaker the prospects of success, the greater the need for the balance of convenience to favour him. I need hardly add that by balance of convenience is meant the prejudice to the applicant if the interdict be refused, weighed against the prejudice to the respondent if it be granted.’
[25] As the applicant seeks an interim interdict, it must satisfy all the
requirements for an interim interdict, which I will deal with hereunder . This Court has
to decide whether the Applicant has made out a case which would entitle it to the relief it seeks.
8 1957 (2) SA 382 (D) at 383D –F.
9
[26] The applicant does not seek an order from this Court to pronounce on the
issue of jurisdiction, as t hat is to be decided by the review C ourt. The applicant only
seeks interim relief to stay arbitration proceedings in which the arbitrator found he
has jurisdiction, pending the finalisation of the review application.
Prima facie right
[27] The applicant for an interim interdi ct must show that it has a right, although
the right might be open to doubt and a right which is being infringed on or which he or she apprehends will be infringed. The right may arise out of contract, delict or it may be founded in the c omm on law or on some statute. The right set out by an
applicant for i nterim relief need not be shown on a balance of probabilities. Where
the interim relief is sought pendente lite, the applicant is required to furnish proof which, if uncontradicted and believed at the trial, would establish his or her right.
[28] The applicant submitted that it has a clear right in terms of section 34 of the
Constitution and statutory rights in terms of section 145 and 158 (1B) of the LR A, to
which an irreparable harm would ensue if the relief sought does not finally determine the matter between the parties as the order will only remain in force until the final determination of the review application, in order to preserve and protect the integrity
of the review application. The applicant’s case is that the CCMA has no jurisdiction to arbitrate the first respondent’s unfair dismissal dispute, and as such t he applicant
has filed a review application to determine whether the arbitrator has, on the
objective facts, the jurisdiction to arbitrate the dispute and afford the appropriate
relief.
[29] On the other hand, the first respondent argued that the applicant has failed
to show that there is an exceptional circumstance where the Court should intervene, and the applicant does not also identify or specify any harm it would suffer should
this Court not intervene. It was further argued by the first respondent that the alleged
harm is speculative and does not warrant urgent intervention sought as the applicant can easily pursue the review application after the conclusion of the arbitration process with possibly stating the arbitration award pending the outcome of the
10
review and also offer security of bond; and as such the Court should be extremely
cautious to intervene in the arbitration process at the CCMA before the matter is
completed based on the friv olous urgent application which will cause unnecessary
legal costs and delay in resolving the unfair dismi ssal dispute which has been
pending since 2003.
[30] In National Treasury and O thers v Opposition to Urban Tolling Alliance and
Others9 (OUTA), the Constitutional Court held that:
‘Under the Setlogelo test, the prima facie right a claimant must establish is
not merely the right to approach a court in order to review an administrative
decision. It is a right to which, if not protected by an interdict, irreparable harm would ensue. An interdict is meant to prevent future conduct and not decisions already made. Quite apart from the right to review and to set aside impugned decisions, the applicants should have demonstrated a prima facie right that is threatened by an impending or imminent irreparable harm.’
[31] Therefore, it means that the applicant has a prima facie right to approach the
court to review the jurisdictional ruling, but following the dicta in OUTA, the mere
right to approach the court is not s ufficient. The applicant has to show that the prima
facie right is threatened by an impending or imminent irreparable harm.
Irreparable harm
[32] The applicant must show irreparable harm or damage and a well -grounded
apprehension of a prejudicial act on the part of the respondents . It is trite t hat the
arbitrators of the CCMA cannot assume jurisdiction where it does not exist, and they
cannot decide their own jurisdiction as this is ultimately to be decided by this Court.
[33] The applicant seeks to challenge the r uling which determined that the CCMA
has jurisdiction and that the dispute be enrolled for arbitration. The reality is that the review application could be dispositive of the matter and could bring an end to the first respondent’s unfair dismissal claim. Should the review court find that the first
9 [2012] ZACC 18; 2012 (6) SA 223 (CC) at par a 50.
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respondent was not dismissed, the underlying causa (namely unfair dismissal) would
be removed and the jurisdiction of the CCMA to adjudicate the dispute will be ousted
and the matter will go no further.
[34] In Emalahleni Local Municipality v Phooko NO and O thers10, it was held that
irreparable harm will invariably result if there is a possibility that the underlying causa
may ultimately be removed, i.e. where the underlying causa is the subject matter of
an ongoing dispute between the parties.
[35] In casu, the parties are involved in an ongoing dispute and the pending
review application seeks to remove the underlying causa and to set aside the
jurisdictional ruling. If the applicant is compelled to continue with the arbitration prior
to the adjudication of the review application, and the review application is ultimately successful, the underlying causa would be removed and the applicant would have
suffered irreparable harm in defending the alleged unfair dismissal dispute.
[36] In Builda Construction Cape Proprietary Limited v Verveen and Another
11,
the Court held that:
‘I find that the applicant will suffer irreparable harm should the arbitration
proceedings proceed before the review application is finalised. From the outset the applicant has opposed the forum of arbitration. It would be
impractical to continue with the arbitration proceedings.
The common sense approach determines that if the applicant is successful later on in review and the findings confirm that the matter was not arbitrable,
then the applicant would have not only incurred unnecessary expenditure
and time but was forced to participate in proceedings it did not concede to. In
this instance, the applicant is further prejudiced as it has not pleaded to the statement of claim in light of the dispute. The prejudice suffered by the applicant most certainly outweighs the prejudice the respondent would suffer
if the arbitration proceedings are not stayed.’
10 [2021] ZALCJHB 61; (2021) 42 ILJ 2196 (LC).
11 [2023] ZAGPPHC 178; [2023] JOL 58442 (FB) at paras 33 and 34.
12
[37] In my view, all the parties would be prejudiced if the arbitration proceedings
were to continue before the issue of jurisdiction has been decided by this Court as
they will all spend time, money and resources to participate in a process before a body which might not have had jurisdiction to adjudicate the dispute in the first place and the outcome of such process, would inevitably lead to further litigation and would
contribute to the burden of this Court.
Balance of c onvenience
[38] The Court has to consider the balance of convenience and in exercising its
discretion, weigh the prejudice to the applicant if the relief sought is withheld against the prejudice to the respondent if it is granted. It is the balancing of respective harms and an assessment of which of the parties will be least seriously affected or prejudiced by being compelled to endure what may prove to be a temporary injustice until the just answer can be found at the end of the trial.
[39] The applicant’s case is that the balance of convenience favours the stay of
the arbitration proceedings pending the outcome of the review application. The
Labour Court will finally determine the issue of jurisdiction and provide the parties
with certainty as to whether the CCMA has jurisdiction to arbitrate the dispute.
[40] Once the Labour Court has decided the matter, the parties will have certainty
as to the way forward. If the Court finds in favour of the applicant, it will be the end of the matter and the parties and the CCMA would not have wasted resources to
arbitrate a dispute over which it has no jurisdiction. Should the Court find that the
CCMA indeed has jurisdiction, the unfair dismissal dispute would be set down for
hearing and the arbitration process would be concluded.
[41] It cannot be disputed that the first r espondent will be prejudiced if the relief
sought is granted and the arbitration proceedings are stayed, as she will have to wait
for the review application to be finalised and be dismissed before she can proceed
with her unfair dismissal dispute. However, this Court has to balance the respective harms and the prejudice to be suffered and make an assessment of which of the parties will be least seriously affected or prejudiced by being compelled to endure
13
what may prove to be a temporary injustice until the just answer can be found when
the review application is adjudicated upon.
[42] In my view, the balance of convenience favours the applicant. The question
as to the CCMA ’s jurisdiction to arbitrate the unfair dismissal dispute should be
considered and decided before the dispute is arbitrated as this would provide clarity
and certainty to the parties and would avoid the wasting of resources and
unnecessary litigation. The outcome of the review application could be dispositive of the entire matter.
[43] The harm to the first respondent can be limited by expediting the review
application instituted by the Applicant. In the papers before this Court, the Applicant
indicated its intention to expedite the adjudication of the review application as it has
already been filed on 21 October 2024, although it is apparent fr om the applicant ‘ s
submissions that the Applicant is struggling to obtain the record of the review proceedings from the CCMA with a possibility of reconstruction of the record. However, that chall enge is for the review court to deal with.
Alternative remedy
[44] The final requirement for the grant of an interim interdict is the absence of
another adequate remedy.
[45] The applicant submitted that it has no alternative remedy available but to
approach this Court for relief as the CCMA has refused to stay the arbitration
process pending the finalisation of the review application. The applicant attempted to obtain the stay of the arbitration process through correspondences with the CCMA
prior to the matter being set down for hearing, and by means of a formal
postponement application on 13 January 2025, a day prior to the CCMA proceedings
of 14 January 2025 pending the finalisation of the review application. The
postponement request was opposed by the first respondent , and as such the
application was refused by the Commissioner.
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[46] I am however observant that the postponement request was granted to the
applicant only due to the reason of ill-health of the applicant’s legal representative. It
can therefore not be said that the a pplicant brought this application in the last hour
thereby making the urgency self -created under the circumstances. The
postponement application was for obvious reasons to try and avoid approaching this
Court for an interi m interdict if the request was allowed. I am satisfied that the
applicant, prior to approaching this Court, tried to postpone the arbitration by
application, pending the finalisation of the review application, but those efforts did not
yield any positive result; and there is no other alternative remedy available to the
applicant under the circumstances than to approach this court for such interim relief.
[47] The remedy that will be adequate at this point, is a temporary relief in the
form of an interim interdict, staying the arbitration proceedings , pending the
finalisation of the applicant’s review application.
Conclusion
[48] The dispute in an application for an interim interdict is therefore not the same
as that in the main application to which the interim interdict relates. In an application for an interim interdict the dispute is whether, applying the relevant legal requirements, the status quo should be preserved or restored pending the decision
of the main dispute. At common law, a court’s jurisdiction to entertain an application for an interim interdict depends on whether it has jurisdiction to preserve or restore the status quo. It does not depend on whether it has the jurisdiction to decide the
main dispute.
[49] In National Gambling Board v Premier of Kwazulu -Natal and Others,
12 the
Constitutional Court considered interdict proceedings and held that:
‘An interim interdict is by definition
“a court order preserving or restoring the status quo pending the final
determination of the rights of the parties. It does not involve a final determination of these rights and does not affect their final determination.” ’
12 [2001] ZACC 8; 2002 (2) SA 715 (CC) at para 49.
15
[50] The relief sought by the applicant is interim in nature to stay the CCMA
arbitration process, pending the final determination of a review application. I am satisfied that the applicant has met the requirements for an interdict and is entitled to
interim relief pendente lite.
Costs
[51] The applicant sought a cost order against the first respondent in view of the
fact that the stay of the arbitration process was requested from the CCMA not from
the first respondent and it was unnecessary for the first respondent to oppose this
application. The first respondent also sought a cost order against the applicant based on the reasons that this application is not in the interests of justice and
expeditious dispute resolution as the first respondent who is paying for the legal fees
from her own pocket, whereas the applicant has not made out a case for urgency in
this matter .
[52] It is a rule of practice that costs follow the result does not apply in labour
matters but the Court has a wide discretion in respect of costs in consideration of the
requirements of law and fairness. In my view, this is a case where the interest of
justice will be best served by making no order as to costs .
[53] In the premises, I make the following order:
Order
1.Pending the finalisation of the review proceedings instituted under case number JR 1895/24, the arbitration process under case number
GATW10295- 22 is stayed;
2.Pending the finalisation of the review proceedings instituted under case
number JR 1895/24, the second and third respondents are interdicted and
restrained from setting down the first respondent’s unfair dismissal dispute
under case number GATW10295 -22 for arbitration;
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3.The applicant and first respondent are directed to jointly approach the acting
Judge President of the Labour Court with a request and motivation to
expedite the adjudication of the review application instituted under case number JR 1895/24.
4.There is no order as to costs.
G. Mafa -Chali
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applic ant: Advocate Xolani Mofokeng
Instructed by: Moja Sibiya Attorneys Inc
For the First Respondent: Advocate Mariska du Plessis
Instructed by: Tuckers Incorporated