THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025- 032846
In the matter between:
MINING QUALIFICATIONS AUTHORITY Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER ALLAN KAYNE N.O . Second Respondent
COMMISSIONER NTHABISENG NGWANE N.O . Third Respondent
LEBOGANG MATLALA Fourth Respondent
Heard: 20 March 2025
Delivered: 27 March 2025
JUDGMENT
2
MAFA -CHALI , AJ
Introduction
[1] The applicant seeks an urgent order to stay the arbitration proceedings
under case number GAJB22539- 24 before the first respondent, the Commission for
Conciliation , Mediation and Arbitration (CCMA), pending the determination of an
application under case number 2015- 037180 to review and set aside the rulings (the
condonation ruling) issued by Commissioner Allan Kayne on 6 December 2024, and
the second ruling (the rescission r uling) issued by Commissioner Nthabiseng
Ngwane dated 10 February 2025 in terms of which the fourth respondent’s
condonation application was granted and the applicant’s application for rescission of
the condonation application was dismissed.
[2] The applicant is challenging the jurisdiction of the CCMA to proceed with the
arbitration proceedings on 28 March 2025, when the condonation and res cission
rulings are currently the subject of a review application.
[3] On that basis, the applicant requested this Court to stay the arbitration
proceedings until the finalisation of the review application.
Background
[4] On 23 September 2024, the fourth respondent referred a dispute of unfair
discrimination to the CCMA with allegations of sexual harassment by the applicant’s Chief Executive Officer (CEO) , who was her line manager at the time. During
conciliation , the applicant challenged the jurisdiction of the CCMA in that the referral
was made outside of the statutory time period prescribed by the Employment Equity Act
1 (EEA) . The conciliator, Commissioner Kaizer Makoela, upheld the jurisdictional
1 Act No 55 of 1998, as amended
3
point that the CCMA ha d no jurisdiction to entertain the dispute and ordered that the
fourth r espondent apply for condonation in terms of the CCMA Rules2.
[5] The fourth respondent’s attorneys filed the condonation application on 29
October 2024 and also served it on the applicant at the email addresses i […] and
T[…]
[6] On 2 December 2024, the applicant filed an answering affidavit to the
condonation application accompanied by a condonation application for its late
delivery , and explained that it did not receive the condonation application because
the fourth respondent served it on different email addresses than those used in the
7.11 referral form as the first email address is simply a general email address not
allocated to any employee of the applicant and the second email address is that of the CEO, the alleged harasser, who is not a party to the CCMA proceedings.
[7] On 6 December 2024, Commissioner Kayne issued a condonation ruling and
indicated that the application was unopposed. The applicant subsequently made an application for rescission of the condonation ruling on 19 December 2024, which was
opposed by the fourth respondent.
[8] On 10 February 2024, Commissioner Ngwane issued a resc ission ruling that
the CCMA lacks jurisdiction to entertain the rescission application and directed that
the matter be scheduled for arbitration before a different Commissioner . The CCMA
subsequently issued a notice of set down for the unfair discrimination dispute to be
heard on 28 March 2025.
[9] As a consequence, the applicant then launched the present application on
10 March 2025 for an order to stay the CCMA arbitration proceedings set down on
28 March 2025, pending the finalisation of the review application, which was
allocated case number 2025- 037180 on 19 March 2024. This application is opposed
by the fourth respondent.
2 Rules 9 and 31 of the Rules for the Conduct of Proceedings before the Commission for Conciliation,
Mediation and Arbitration GN R3318 of 21 April 2023, effective 24 April 2023.
4
Urgency
[10] The Court may , at its discretion under Rule 38 read together with Rule 42 of
the Rules of this Court3 and on good cause shown, relax or shorten t he strict formal
rules relating to time frames 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 af forded
substantial redress if it had brought the matter to Court by way of an ordinary non-
urgent procedure.
[11] Therefore, the question of whether a matter is sufficiently urgent to be
enrolled and heard as an urgent application is underpinned by the issue of the
absence of substantial redress in an application in due course. The R ules allow the
Court to come to the assistance of the applicant because, if the latter were to wait for
the normal course laid down by the R ules, it would not obtain substantial redress.
[12] It is also important to note that the R ules require the absence of substantial
redress. This is not equivalent to the irreparable harm that is required before the granting of an interim relief. It is something less. The applicant may still obtain
redress in an application in due course, but it may not be substantial. Whether an
applicant will not be able to obtain substantial redress in an application in due course
will be determined by the facts of each case. An applicant must make out his case in
that regard.
[13] In my view , the delay in instituting proceedings is not on its own a ground for
refusing to regard the matter as urgent. A C ourt is obliged to consider the
circumstances of the case and the explanation given.
4 The important issue is
whether , despite the delay, the applicant can or cannot be afforded substantial
redress at a hearing in due course. A delay might sometimes be an indication that
3 GN 4775a of May 2024: Rules Regulating the Conduct of the Proceedings of the Labour Court
(effective 17 July 2024).
4 See: Nelson Mandela Metropolitan Municipality and Others v Greyvenouw CC and Others 2004 (2)
SA 81 (SE) at 94C –D;
Stock and Another v Minister of Housing and Others 2007 (2) SA 9 (C) at 12I–13A.
5
the matter is not as urgent as the applicant would want the Court to believe, but it is
not necessarily a determining factor , on its own , to refuse an urgent application.
[14] It then mean s that if there is some delay in instituting the proceedings , an
applicant has to explain the reasons for the delay and why , despite the delay , he
claims that he cannot be afforded substantial redress at a hearing in due c ourse. The
fact that the a pplicant wants to have the matter resolved urgently does not render the
matter urgent. The correct and the crucial test is whether, if the matter were to follow its normal course as laid down by the Rules, would an applicant be afforded
substantial redress ? If he cannot be afforded substantial redress at a hearing in due
course, then the matter qualifies to be enrolled and heard as an urgent application.
If, despite the anxiety of an applicant , he can still be afforded a substantial redress in
an application in due course, the applicati on does not qualify to be heard on an
urgent basis .
[15] The applicant submitted that this application is urgent and seeks an interim
relief , not a rule nisi . The applicant further submits that urgency was not self -created,
considering the principles that a court should be slow to refuse to hear a matter
where a litigant will be deprived of su bstantial redress in due course. It was also
argued that delaying to approach the C ourt, with attempts to settle the impasse prior
to approaching the Court, is not undue delay , thereby not aff ording a party’s
opposition sufficient time to place its case before the C ourt, and that the notion of
‘self-created’ urgency means more than a mere delay involving a degree of
contrivance to jump the queue of hearings in the ordinary course. The applicant
argued that it took steps to seek consent from the fourth respondent to stay the
arbitration proceedings , which was refused, and the applicant had to seek legal
advice on the matter, therefore, the delay is f or one month only before the date the
review application was launched.
[16] The applicant further submitted that as the purpose of the review application
is to challenge the refusal of the rescission of the condonation ruling, it would render this application moot if it is heard in the ordinary application procedure, as in all probability , the arbitration hearing would have proceeded and an award would be
6
issued by the Commissioner and the applicant cannot wait until the arbitration is
finalised to challenge the condonation and rescission rulings. [17] However, the fourth respondent submitted that the applicant has failed to
make out a case for urgency in that it has taken the e ntire month to bring the urgent
application to C ourt and did not articulate what steps were taken until approaching
the Court on an urgent basis. It was also argued that the applicant did not even
account for the five days between 21 to 25 February 2025, and therefore, t he
urgency is self -created because it has been significantly diminished by such f ailure
to demonstrate why this application deserves the urgent attention of this Court.
[18] I find that , even though there was a one month delay in bringing the urgent
application to Court, the applicant has given a reasonable and acceptable explanation for such a delay in bringing the urgent application to Court. I also find
that the delay is not excessive under the circumstances considering that the
applicant was just not merely sitting and not taking any action. I am , therefore,
satisfied that the matter is sufficiently urgent to be heard as an urgent application.
Section 158(1B) and the relief sought
[19] 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.’
[20] 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 equitable to do so, the applicant must establish that it would be just and equitable for the Court to
5 Act 66 of 1995, as amended.
7
intervene by entertaining the application to review and set aside the arbitrator’s
jurisdictional ruling.
[21] 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
slow and reluctant to intervene and entertain reviews of rulings made during those
proceedings prior to the conclusion of the arbitration proceedings before the CCMA
or bargaining councils.
[22] The applicant in casu seeks an interim order to stay the arbitration
proceedings, pending the determination of the review application to set aside the
condonation and rescission rulings of the CCMA.
[23] To the extent that the applicant seeks an interim order, it must establish or at
most, demonstrate a prima facie right; a well -grounded apprehension of irreparable
harm if the interim relief is not granted; that the balance of convenience favours the
granting of an interim interdict; and that there is no other satisfactory remedy. These
are the requirements for interim relief as set out in Setlogelo v Setlogelo
6.
[24] 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.
[25] The applicant does not seek from this Court a final order , instead, it seeks an
order maintaining the status quo pending the determination of its review application
as the final determination to pronounce on the CCMA’s jurisdiction is still to be
decided by the review Court. The applicant only seeks interim relief to stay the
arbitration proceeding pending the finalisation of the review application.
[26] The fourth respondent argued and submitted that the applicant failed to
make an exceptional case for a finding that it is just and equitable for this Court to
6 1914 AD 221 at 227.
8
intervene with incomplete arbitration proceedings in that it states that the applicant is
unhappy in the manner the CCMA determined its opposition to the condonation
application, and that if the stay is not granted, the pending review application will be academic. It was further argued that such reasons are not good motivation for a just and equitable order and it would defeat the purpose of the legislative interventions
through section 158(1B) of the LRA if every disgruntled litigant not happy about an
interlocutory ruling is heard with piecemeal approached to the Court rather than
review the arbitration outcome when it is not in its favour.
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 interim 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.
7
[28] The applicant submitted that it has a clear right in terms of section 138(1) of
the LRA, which somehow guarantees parties a fair hearing and in this matter , a
determination of the CCMA ’s jurisdiction to arbitrate the fourth respondent’s unfair
discrimination dispute after having failed to properly determine the condonation and
rescission applications in accordance with the LRA, CCMA R ules and the EEA.
[29] The basis of the applicant’s attacks of the CCMA jurisdiction on the
condonation application are firstly, that the CC MA decided the applications on
papers without ensuring that the parties are giv en an opportunity to be heard;
secondly that the CCMA has not cons idered the answering affidavit filed by the
applicant together with the condonation appli cation, and the said affidavit brought to
the attention of the CCMA , thirdly that the condonation application was served on the
email addresses of the appl icant that were not used by the fourth respondent in the
7 See: Webster v Mitchell 1948 (1) SA 1186 (W). See also: City of Johannesburg Metropolitan
Municipality v Mphefo and Others (J787/2024) [2024] ZALCJHB 287 (30 July 2024) at para 19.
9
7.11 form and neither of those email addresses belonged to the correct
representatives of the applicant but served on t he CEO who is not a party to the
CCMA proceedings and no consent was given by the applicant for service of the
condonation application on the CEO; the person against whom the allegations of
sexual harassment have been made by the fourth respondent, and as a
consequence, the applicant did not receive the condonation application.
[30] The applicant submitted that despite several communications with the CCMA
on 25 November 2024 and 26 November 2024 respectively explaining that the
applicant has not received the condonation application and the condonation
application cannot proceed due to non- service as it would provide further information
and evidence on non- receipt of the condonation application at the hearing of the
matter, Commissioner Kayne erroneously proceeded with the condonation
application on an unopposed basis without affording the applicant an opportunity to be heard.
[31] The fourth respondent’s view is that the applicant seeks final relief not an
interim one, and therefore ought to have proven a clear right and show n a threat of
breach to such right but failed to do so, thereby failing to make a proper case to be grated the relief sought; and as such, the application must stand to be dismissed on
this ground. It was also submitted that the applicant is very aware that the Chairperson of the investigations made very substantive f indings and
recommendations to remove the fourth respondent and offer her counselling, but the
applicant instead concluded that there was no sexual harassment and ignored those
findings. It was argued that the CCMA must be allowed to deal with the sexual
harassment dispute as it is the fourth respondent’s view that the there was a proper
service of the condonation application upon the applicant , and in particular , upon the
CEO, who just deliberately did not attend to it .
[32] The applicant’s challenge of the CCMA jurisdiction on the rescission
application is that it was also erroneously decided in the applicant’s absence and that neither of the parties challenged the CCMA ’s jurisdiction to consider and
determine the application as the fourth respondent fi led the opposing and answering
affidavits . However, Commissioner Ngwane i ssued a ruling indicating that the CCMA
10
did not have jurisdiction to entertain the rescission application because
Commissioner Kayne considered the email submissions delivered by the applicant ,
which was patently wrong and trumped on the applicant’s rights in terms of CCMA
Rules 31(10) and 31(5).
[33] In National Treasury and O thers v Opposition to Urban Tolling Alliance and
Others8 (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.’
[34] 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
[35] 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.
[36] Since the applicant seeks to challenge the r uling which determined that the
CCMA has jurisdiction and that the dispute be enrolled for arbitration , it is my
considered view that the review application could be dispositive of the matter and
could bring an end to the fourth respondent’s unfair discrimination claim. Should the
review succeed, the underlying causa (namely , unfair discrimination) would be
8 [2012] ZACC 18; 2012 (6) SA 223 (CC) at par a 50.
11
removed and the jurisdiction of the CCMA to adjudicate the dispute would be ousted,
and the matter would go no further.
[37] In Emalahleni Local Municipality v Phooko NO and O thers9, 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.
[38] 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 CCMA
ruling s. If the a pplicant 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.
[39] In Builda Construction Cape Proprietary Limited v Verveen and Another10,
the Court held that:
‘[33] 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.
[34] The common sense approach determines that if the applicant is
successful later on 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.’
[40] 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
9 [2021] ZALCJHB 61; (2021) 42 ILJ 2196 (LC).
10 [2023] ZAGPPHC 178; 018498/13 (22 March 2023) at para s 33 and 34.
12
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. It would therefore be an irreparable harm
towards the applicant to allow the arbitration process to proceed whereas there is a
challenge on the jurisdiction of the CCMA to arbitrate the dispute since once the
arbitration continues and the award is issued, the applicant would lose an
opportunity to still challenge the CCMA jurisdiction but rather only to challenge the arbitration award if it is not in its favour.
Balance of c onvenience
[41] 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.
[42] The applicant’s case is that the balance of convenience favours the stay of
the arbitration proceedings pending the outcome of the rev iew application as 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.
[43] Indeed, 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.
[44] It cannot be disputed that the fourth respondent will also be prejudiced if the
interim relief sought is granted and the arbitration proceedings are stayed, as she will
have to wait for the review application to be finalised, and if dismissed, she can
13
proceed with her unfair discrimination 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 what may prove to be a temporary injustice until the answer can be found
when the review application is adjudicated upon.
[45] The question as to the CCMA ’s jurisdiction to arbitrate the unfair
discrimina tion dispute should obviously 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. Therefore, i n my view,
the balance of convenience favours the applicant.
Alternative remedy
[46] The final requirement for the grant of an interim interdict is the absence of
another adequate remedy.
[47] The applicant submitted that it has no alternative remedy available but to
approach this Court for relief as it approached the fourth respondent to stay the
proceedings pending a review application but such request was not conceded to and
that the postponement request would have met a similar opposition and may have
only been limited to the date of the hearing on 28 March 2025.
[48] I am satisfied that the applicant, prior to approaching this Court, tried to seek
consent from the fourth respondent to stay the arbitration by agreement, pending the
finalisation of the review application, but those efforts did not yield any positive
result. There is , therefore, no other alternative remedy available to the applicant.
[49] Under the circumstances, it is my view that the applicant did not have any
other remedy than to seek a temporary relief in the form of an interim interdict,
staying the arbitration proceedings pending the finalisation of the applicant’s review
application.
14
Conclusion
[50] This dispute is an application for an interim interdict and 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.
[51] In National Gambling Board v Premier of Kwazulu -Natal and Others,
11 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.”
[52] 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
the interim relief pendente lite.
Costs
[53] The 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. Both the applicant and the fourth respondent
did not pursue the issue of costs and indicated that the issue must be left to the discretion of the Court.
11 [2001] ZACC 8; 2002 (2) SA 715 (CC) at para 49.
15
[54] In my view, this is a case where the interest of justice will be best served by
making no order as to costs .
[55] In the premises, I make the following order:
Order
1.Pending the finalisation of the review proceedings instituted under case no:
2025- 037180, the arbitration process under case no: GAJB22539- 24 is
stayed;
2.Pending the finalisation of the review proceedings instituted under case no: 2025- 037180, the first respondent is interdicted and restrained from setting
down the fourth respondent’s unfair discrimination dispute under case no:
GAJB22539- 24 for arbitration;
3.The parties are directed to jointly approach the Judge President of the Labour Court with a request and motivation to expedite the adjudication of the review application instituted under case no: 2025- 037180.
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 Zinhle Ngwenya
Instructed by: Phatsao ne Henney Attorneys
For the Fourth Respondent: Mr Bongani Luthuli of Bongani Khanyile Attorneys