THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 577 / 23
In the matter between:
CONVEYOR AND PLANT SERVICES (PTY) LTD Applicant
and
CHARMAINE LUBBE First Respondent
MORNE LUBBE Second Respondent
DAWID VAN NIEUWENHUIZEN Third Respondent
MARIA DOROTHEA VAN NIEUWENHUIZEN Fourth Respondent
COMMISSIONER VUSI MOYO, N.O. Fifth Respondent
COMMISSION FOR CONCILIATION MEDIATION AND
AND ARBITRATION Sixth
Respondent
Heard: 02 July 2025
Delivered: 29 August 2025
Summary: The Applicant seeks to review and set aside the refusal to
rescind a default arbitration award dated 2 January 2023.
2
JUDGEMENT
PRETORIUS, AJ
Introduction
[1] This is a review application brought by the Applicant in terms of s ection
158(1)(g) of the Labour Relations Act
1 (LRA) wherein it is sought to review and set
aside a ruling of the Fifth Respondent under case number GAEK7090/22, as issued on
2 January 2023.
[2] In this ruling that is sought to be reviewed, the Commissioner refused to
rescind a default arbitration award issued by him. The Applicant seeks to have the
rescission ruling reviewed and consequently that the default arbitration award be
rescinded and the matter be remitted to Sixth Respondent to be dealt with de novo
by a commissioner other than the Fifth Respondent.
Background
[3] The Applicant is a member of the AHI Employer’ Organisation. The
Employers’ Organisation official who was instructed to represent the Applicant at the
arbitration process was Mr T Nel.
[4] The First to Fourth Respondents contend that they have been unfairly
dismissed by the Applicant and referred an unfair dismissal dispute to the Sixth
Respondent. They contend that they were collectively dismissed by the Applicant in
a meeting held on 13 July 2022.
[5] On 3 November 2022, the arbitration process took place which resulted in a
1 Act 66 of 1995, as amended.
3
default arbitration award being issued. On this date, the attorney for the First to
Fourth Respondents attended the CCMA along with the First to Fourth Respondents.
Neither the Applicant nor his representative were in attendance.
[6] After the issuing of the default arbitration award on 15 November 2022, a
rescission application was launched by the Applicant and was set down for hearing
on 23 December 2023.2
[7] The Fifth Respondent ruled that the rescission application was refused and
that the default arbitration award ‘ is upheld and must be enforced’ . This ruling was
signed on 2 January 2023.
[8] The application for rescission indicates the following:
8.1. Mr Nel’s non-attendance at the arbitration process was due to his ill -
health;
8.2. An agreement was reached with the First to Fourth Respondents ’
attorneys to postpone the matter due to Mr Nel’s ill-health;
8.3. Mr Nel suffers from a back deformity which occasionally results in
excruciating pain where he finds it difficult to walk. His condition unexpectedly
worsened on 1 November 2022 , and he immediately made an appointment
with his doctor who was available on 2 November 2022 at 07h30;
8.4. Mr Nel immediately communicated with the First to Fourth
Respondents’ attorneys by email at 11h38 on 1 November 2022 seeking a
postponement, wherein he stated, inter alia, that ‘ I will not be able to find a
replacement to represent the company on such short notice and kindly ask
that you will consider my request’.
8.5. Ms J Djordjevic of Gilpen Attorneys who represented the First to
Fourth Respondents answered on the same date at 12h57 as follows:
‘Good afternoon Mr Nel
The abovementioned matter refers.
Our offices are amenable to postponement provided upon receipt of a medical
certificate. ...’
2 Annexure “C”, Rescission Ruling, p. 36, pleadings bundle.
4
8.6. On the morning of Wednesday, 2 November 2022, Mr Nel authored
an email to the attorneys of the First to Fourth Respondents at 08h43,
annexing the medical certificate and confirming that he was booked off ill until
7 November 2022 due to the injury to his back. He also thanked the attorneys
for agreeing to the postponement. This email was forwarded to the CCMA. As
such, the Applicant contends that t here was an agreement between the
parties to postpone the matter;
8.7. On 2 November 2022, a certain K Motshabi of the Sixth Respondent
copied all the recipients at the attorneys of the First to Fourth Respondents as
well as Mr Nel and stated that ‘ … we acknowledge receipt of your respond
please take note that it will be filled (sic) for the Commissioner’s attention’.
8.8. It appears that the attorneys of the First to Fourth Respondents had
a change of heart and indicated to Mr Nel at 0 9h27 that instructions had been
received to oppose any application for postponement and that the Applicant
had to make a formal application for postponement as the request for a
postponement was viewed by the First to Fourth Respondents as a delaying
tactic.
8.9. Mr Nel did not see the email from the attorneys of the First to Fourth
Respondents that purported to resile from the agreement to postpone. He no
longer checked his emails since he had been booked off ill.
8.10. After the default arbitration was issued in favour of the First to Fourth
Respondents, and in the rescission application, Mr Nel dealt with the reasons
for the default as well as the Applicant’s prospects of success in defending the
unfair dismissal allegation.
8.11. Mr Nel contended that good cause existed for the default arbitration
award to be rescinded.
[9] Ultimately the Fifth Respondent refused the rescission of the default
arbitration award. As a result, this review application was launched.
Issues for determination
[10] The First to Fourth Respondents submitted that the following issues arise
[10] The First to Fourth Respondents submitted that the following issues arise
from the affidavits before me for determination:
5
10.1. whether or not there is a proper and pending review application before
me;
10.2. whether the Fifth Respondent failed to properly apply his mind to
evidence of an alleged agreement to postpone the arbitration proceedings
between the representatives of the parties; and
10.3. whether the Fifth Respondent committed a gross irregularity and/or
misconducted himself when he made a determination on the existence of an
agreement in the absence of the Applicant at the arbitration.
First to Fourth Respondent’s contentions
[11] The First to Fourth Respondents contended that:
11.1. the Applicant seeks to review the rescission ruling of the Fifth
Respondent issued on 2 January 2023 wherein the Fifth Respondent refused
to rescind the default arbitration award made against the A pplicant dated 15
November 2022.
11.2. the Applicant only filed its application for review on 4 April 2023 and
filed same in terms of section 158(1)(g) of the LRA instead of section 145 of
the Act. In terms of section 145 of the LRA, the Applicant had six weeks from
the date of the rescission ruling, being 2 January 2023, to file its application
for review, meaning that the application for review had to be filed on or before
13 February 2023.
11.3. The application for review was only filed on 4 April 2023, some 13
weeks after the rescission ruling of the Fifth Respondent was handed down.
11.4. In addition, the review application ought to have been brought under
section 145 and not section 158(1)(g) of the LRA.
11.5. No proper application for condonation has been filed by the Applicant
and thus the matter is not currently before me.
11.6. That no basis existed for the rescission of the default award. Having
regard to the Applicant’s founding affidavit as well as its supplementary
affidavit, the Applicant has failed to point out any single incident relating to the
Fifth Respondent’s conduct and /or irregularities, and instead the Applicant, in
Fifth Respondent’s conduct and /or irregularities, and instead the Applicant, in
its application and founding affidavit is challenging the decision of the Fifth
Respondent as they are unhappy with the merits of the matter and not his
6
conduct in that the Applicant stated ‘the refusal of the commissioner to grant a
rescission of the default arbitration award is deemed to be wrong and stands
to be reviewed’ and ‘the Applicant further states that there was no dismissal of
the First to Fourth Respondents during the meeting of 13 July 2022 and as
such, the CCMA lacked the necessary jurisdiction to arbitrate the matter’.
11.7. Lastly, that the Applicant was attempting to bring an appeal instead of a
review.
The Applicant’s contentions
[12] With reference to condonation, the Applicant contended that:
12.1. Initially no condonation was required in respect of section 158(1)(g)
reviews, and that it was sought in the founding affidavit ex abudanti cautela.
12.2. In argument, it was conceded that condonation was in fact required and
that grounds exist for condonation to be granted to the applicant.
[13] With reference to the merits, the Applicant contended that:
13.1. In terms of section 144 of the LRA, a commissioner may rescind an
arbitration award or ruling by an affected party erroneously sought or
erroneously made in the absence of that party or granted as a result of a
mistake common to the parties to the proceedings.
13.2. There were historically two schools of thought that emerged from the
Labour Court dealing with rescission. The first view wa s that a wide meaning
should be afforded to section 144 with this approach requiring a reasonable
explanation and a bona fide defence on the merits of the matter.
13.3. The second view that developed is that a narrow interpretation should
be applied and that a reasonable explanation and a bona fide defence are not
relevant to applications for rescissions brought in terms of terms of section
144 of the LRA. This approach requires that the application should be founded
on one of the specific grounds stated in section 144 and on those grounds
alone. The Applicant meets the threshold as established by both of these
alone. The Applicant meets the threshold as established by both of these
historical views. It has demonstrated in the rescission application that there
was indeed a reasonable explanation for not attending the arbitration process
on the day and that should have been the end of the enquiry. In addition,
7
however, the Applicant has shown that it has a bona fide defence on the
merits of the matter.
13.4. An applicant for the rescission of a default arbitration award must show
good cause and prove that it had at no time renounced its defence and has
serious intention of proceeding with the case. In this matter, the Applicant
opposed the initial application for a postponement brought by the attorney of
the First to Fourth Respondent s in order to bring the matter to finality and
requested consent to a postponement when Mr Nel’s medical condition
worsened, without any delay.
13.5. The jurisdictional challenge mounted by the Applicant was not
entertained by the Commissioner, but this also shows the Applicant’s intention
to defend the matter on the merits.
13.6. In Northern Province Local Government Association v CCMA and
Others
3 (Northern Province), the Labour Court was faced with a review of a
commissioner’s refusal to rescind a default arbitration award. The Court held
that to have an arbitration award rescinded that was granted in a party’s
absence, such an applicant must show firstly, that it has a bona fide case to
place before the CCMA and that it had not lost interest in having its case
heard and secondly, its absence at the hearing has been reasonably
explained.
13.7. In Foschini Group (Pty) Ltd v CCMA and Others
4, the Court cited with
approval the matter of Northern Province and stated that if an explanation
given for a party’s non- appearance at the arbitration proceedings does not
indicate that the absent party was wholly blameless, the explanation must still
be balanced against that party’s prospects of success. The Court confirmed
that a s trong bona fide case would usually compensate for a less than
satisfactory explanation for default. In the current matter, the Applicant was
not to blame for its absence since it was caused as a result of a
postponement agreement between the parties and the submission of a
postponement agreement between the parties and the submission of a
medical certificate that was also brought to the CCMA’s attention.
Furthermore, the Applicant appeared to have a bona fide defence on the
merits but wrongly held in his rescission ruling that there was not a reasonable
3 [2001] 5 BLLR 539 (LC).
4 [2002] 7 BLLR 619 (LC) at 622F – H.
8
explanation for the default. The Commissioner erred on the law by holding
that, without a reasonable explanation, prospects of success are immaterial.
He conflated the current test for a rescission of a default arbitration award with
that of a party seeking condonation.
13.8. The Labour Appeal Court (LAC) recently in Mohube v C ommission for
Conciliation, Mediation and A rbitration and Others 5 dealt with a
commissioner’s refusal to grant a rescission of a default arbitration award. It
confirmed the legal principles applicable to rescission applications and
rescission rulings and elaborated on the meaning of the term ‘ good cause’ .
‘Good cause’ entails that an A pplicant for rescission must show at least the
following:
13.8.1. An absence of wilfulness:
13.8.2. That it has a reasonable explanation for the default;
13.8.3. That the application for rescission is bona fide and not made with the
intention to delay; and
13.8.4. That it has a bona fide claim against the other party.
13.9. The Court held that all these elements must be considered, weighed
and, for example, proof of a bona fide claim may make up for a weaker
explanation.
6
13.10. The LAC confirmed that the commissioner was wrong in concluding
that the appellant’s prospects of success appeared to be weak and that this
was an unreasonable assumption. A reasonable commissioner would have
found that the appellant’s referral was bona fide and that his failure to appear
was reasonably explained and was not wilful and/or intended to delay the
resolution of the dispute. The c ommissioner’s ruling was subsequently set
aside.
13.11. In Professional Transport Workers’ Union v Malema and Others
7, the
LAC upheld an appeal setting aside a rescission ruling where the
commissioner did not consider ‘good cause’. The Court held good cause to be
an independent ground for rescission in addition to the grounds as set out in
Section 144 of the LRA.
5 (2023) 44 ILJ 1683 (LAC).
6 Ibid at para 25.
7 [2016] JOL 35710 (LAC).
9
13.12. In Senator International Logistics (Pty) Ltd v Raphela and Others 8, the
Court reviewed a refusal by a c ommissioner to rescind a default arbitration
award because the c ommissioner did not consider the second aspect of the
test, i.e. the prospects of success. He simply stated that he ‘ was satisfied with
the award issued’ as the commissioner stated in casu in his rescission ruling.
The Court held that there was no indication that the commissioner considered
the employer’s submission on its prospects of success in the arbitration and
as such, the commissioner failed to apply the test for good cause by the LAC.
In doing so, a gross irregularity was committed.
Analysis
Condonation
[14] The Applicant launched its review in terms of section 158(1)(g) of the LRA (a
topic that I will return to hereunder). Even though no time limit is set in this section as
to when such a review must be launched, given the section’s close proximity to
section 145, such review application had to be launched within a reasonable time
which has been found to also be six weeks.
9
[15] As such, the review application is a month late and the applicant required
condonation.
[16] Every application for condonation must show good cause and set out
grounds for condonation and include the following details:
1. Degree of lateness;
2. The reasons for the lateness;
3. The referring party’s prospects of success;
4. Any prejudice to the other party; and
5. Any other relevant factors.10
8 [2019] JOL 44325 (LC).
9 See: Weder v Member of the Executive Council for the Department of Health, Western Cape [2013]
1 BLLR 94 (LC).
10 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A); Sasol Infrachem v Sefafe and Others
(2015) 36 ILJ 655 (LAC).
10
[17] The other relevant factors to be considered include:
17.1. The Respondent’s interest in finality; and
17.2. Avoidance of unnecessary delay in the administration of justice.11
[18] The onus is on the applicant for condonation to satisfy the court that
condonation should be granted. In NUMSA and Another v Hillside Aluminium 12,
Murphy AJ held that:
‘Condonation is not there simply for the asking. Applications for condonation
are not a mere formality. The onus rests on the applicant to satisfy the court of
the existence of good cause and this requires a full, acceptable and ultimately
reasonable explanation.’
13
[19] The LAC held as follows in NUM v Council for Mineral Technology:
14
‘…without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial, and without prospects of success, no
matter how good the explanation for the delay, an application for condonation
should be refused… .’
[20] The explanation of the Applicant consists of a reliance on the fact that
ordinarily in the High Court there would be dies non which would cover the period
when this award was received. This however does not apply in the Labour Court and
thus the delay would not be unreasonable in that context. Also, the Applicant
indicates that its attorneys of record’s office closed during this period and the
Applicant could not consult with its attorneys during such time. The affidavit is vague
and bereft of detail in regard to when the offices of the Applicant’s attorneys opened
for business in January 2023.
11 Academic & Professional Staff Association v Pretorius NO and Others (2008) 29 ILJ 318 (LC).
12 [2005] 6 BLLR 601 (LC) at para 12; City of Cape Town v SA Local Government Bargaining Council
and Others (2014) 35 ILJ 163 (LC).
13 See also: A Hardrodt (SA) (Pty) Ltd v Behardien and Others (2002) 23 ILJ 1229 (LAC); Meintjies v
H D Combrinck (EDMS ) Bpk 1961 (1) SA 262 (A) at 263H -264A; Saloojee and Another v Minister of
Community Development 1965 (2) SA 135 (A) at 138E -F; Glazer v Glazer 1963 (4) SA 694 (A) at
702H.
14 [1999] 3 BLLR 209 (LAC); Production Institute of Southern Africa (Pty) Ltd v C ommission for
Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 1712 (LC).
11
[21] The second basis upon which the Applicant seeks to rely relates to an
attempt made to resolve the default arbitration award with the First to Fourth
Respondents as they are close family members of the deponent to the founding
affidavit, but that such attempt bore no fruit . It is a pity that paragraph 20 of the
Applicant’s founding affidavit, which deals with this attempt at reconciliation , is met
with a generic denial rolled up with five other paragraphs in the opposing affidavit
and is not dealt with specifically. As such, I have no basis but to accept that an
attempt was made by the Applicant to resolve the dispute with the First to Fourth
Respondent notwithstanding the paucity of information regarding when and how this
attempt was made.
[22] It appears as if the Applicant was somewhat laconic in regard to the reasons
for the delay based on the misguided understanding of the requirement of
condonation even in matters where reliance is placed on section 158(1)(g) of the
LRA.
Prospects of success
[23] Turning to prospects of success, the test for prospects of success has been
stated as follows:
‘The fact that the onus of proving the fairness of the dismissal rests on the
employer, does not relieve an applicant in a condonation application of the
obligation of proving that it has prospects of success. It means that the test for
prospects of success will be applied in the context of a dismissal dispute
where the onus of proving the fairness of the dismissal rests ultimately on the
respondent employer. The test is not that it will, but could succeed. It is a
preliminary and not final assessment of the merits of an applicant's case.’
15
[24] In this instance, the Applicant relies primarily on a defence that no dismissal
occurred on 13 July 2022, which he also raised as a point in limine that goes to the
jurisdiction of the Sixth Respondent to arbitrate.
15 Mould v Roopa NO and Others (2002) 23 ILJ 2076 (LC) at par a 30. See also: Overberg District
Municipality v I ndependent Municipal & Allied Trade Union on behalf of Spangenberg and Others
(2021) 42 ILJ 1283 (LC) at para 60.
12
[25] In addition, the Applicant contends that the Fifth Respondent failed to
acknowledge that a postponement agreement had been concluded between Mr Nel
and the First to Four th respondents ’ legal representatives, and that the medical
certificate of Mr Nel was submitted, and as such, this postponement should have
been granted and the matter should not have proceeded in default.
[26] The Applicant contends that the Fifth Respondent erred in finding that there
was no agreement between the parties to postpone the matter , and as a medical
certificate was submitted, it should have resulted in the rescission application
succeeding.
[27] Ultimately, the prejudice to be suffered by the A pplicant in these
circumstances would be that the doors of court would be closed to it (so to speak ),
without it having any opportunity to state its case.
[28] In this instance, the explanation for the delay is less than satisfactory. The
delay however is not extreme. If this is balanced against the prospects of success
and the prejudice to the Applicant that the doors of court would be closed to it
without having had an opportunity to be heard, in circumstances where it believed
that a postponement had been agreed, to refuse condonation would not be in the
interests of justice.
16
[29] I am accordingly inclined to grant condonation to the Applicant for the late
serving and filing of its review application.
Review application competent in terms of Section 158(1)(g)?
[30] The First to Fourth Respondents contend that:
30.1. the Applicant’s review application was brought in terms of s ection
158(1)(g) which empowers the Court, subject to section 145, to review the
performance or purported performance of any function provided for in the LRA
16 Ferris and Another v Firstrand Bank Ltd 2014 (3) SA 39 (CC) at para 10.
13
on any grounds that are permissible in law.
30.2. Section 158(1)(g) of the LRA empowers this Court to review the
performance of any function provided for in the LRA on any grounds
permissible in law. What permissible grounds for purposes of section
158(1)(g) are have been defined and accepted as a review based on section 6
of the Promotion of Administrati ve Justice Act
17 (PAJA), or a review based on
the principles of legality or common law grounds.
30.3. As such, the application for review instead should have been brought in
terms of section 145 of the LRA.
[31] In argument , I was referred to three judgments that held that refusals to
rescind a default arbitration award are reviewable in terms of section 158(1)(g) of the
LRA, namely Day & Night Investigators CC v Ngoasheng and Others18, SACCAWU
v CCMA & Others 19 and Northern Province 20. This approach has been adopted in
more recent judgments as well .21 I am in respectful agreement with this approach
and as such, there is no merit in this contention raised on behalf of the First to Fourth
Respondents.
Review test in respect of applications brought in terms of Section 158(1)(g) of the
LRA
[32] Section 158(1)(g) of the LRA creates a juri sdictional footprint for review by
the Labour Court. What constitutes permissible grounds of review is dependent on
the nature of the impugned decision, and three grounds are potentially available,
namely a review based on Section 6 of PAJA, the principle of legality , or common
law grounds.
22
[33] From the judgments dealing with refusal to rescind default arbitration awards
17 Act 3 of 2000.
18 [2000] 4 BLLR 398 (LC) at para 12.
19 [2000] 10 BLLR 1215 (LC) at para 13.
20 Northern Province supra at para 13.
21 See: Retail & Allied Workers Union on behalf of Ngweletsana v PT Operational Services (Pty) Ltd &
others (2010) 31 ILJ 1926 (LC) and Mahlangu v Commission for Conciliation, Mediation and
Arbitration and Others (JR1679/13) [2015] ZALCJHB 307.
Arbitration and Others (JR1679/13) [2015] ZALCJHB 307.
22 Building Industry Bargaining Council (Southern and Eastern Cape) v CCMA [2011] 4 BLLR 330
(LC) at para 13. See also C Bosch, A Myburgh ‘Reviews in the Labour Courts’, Juta at pp 130-140.
14
in terms of section 158(1)(g) of the LRA , the principle of legality in the form of
rationality has been applied to refusals to rescind default arbitration awards .23 The
founding affidavit and the Applicant’s heads of argument also appear to be based on
an irrationality argument. It must be remembered that in terms of section 158(1)(g) of
the LRA, the review may be based on any grounds that are permissible in law.
Refusal to rescind the default arbitration award
[34] The Applicant highlights the following from the rescission ruling:
34.1. Mr Gilpen, the attorney of the First to Fourth Respondent , criticised
the Applicant’s rescission application as the application was never served on
the employees personally, but only on the attorneys.
34.2. Mr Nel is not an employee of the Applicant and the employer has
more than 50 employees and could have attended the arbitration process.
34.3. Mr Nel stated in the replying affidavit that no one at the Applicant is
educated and experienced in labour law to deal with the complexities of the
arbitration and that a replacement could in any event not have been secured
on such short notice. Importantly, the Commissioner captures the reply of Mr
Nel that he was ‘under the impression that there was agreement’.
34.4. In paragraph 13 of the ruling, the Commissioner reached the
conclusion that there was ‘no evidence’ of an agreement between the parties
to postpone the matter and there was also no application to postpone the
matter.
34.5. The Commissioner attempted to justify his ruling by referring to the
Oxford Dictionary meaning of ‘ amenable’
24, as not being evidence of an
agreement to postpone.
34.6. That Mr Nel erred in not directly contacting the four individual
employees about his ‘ request for a postponement ’ but only the employees’
attorneys. ‘The request was rejected by the legal representative in no
uncertain terms, and he was advised to file a proper application for
postponement in terms of Rule 31 of the CCMA rules’.
postponement in terms of Rule 31 of the CCMA rules’.
23 In this instance, the basis for the review appears insignificant as the outcome would have been the
same applying either PAJA or common law grounds for review.
24 ‘Open and responsive to suggestion; easily persuaded or controlled; capable of being acted upon in
a particular way; susceptible’.
15
34.7. That the Commissioner was not persuaded that the Applicant was
not in wilful default.
34.8. That the Applicant’s inaction ‘ is evidence that the employer was not
at all material times prepared to deal with the matter and defend its case’.
34.9. Finally, the Fifth Respondent h eld, on the aspect of prospects of
success, that both parties are ‘clearly confident of their respective cases ’ but
that the legal question that arises is whether he had any reason to interfere
with the default arbitration award as issued and ‘ as things stand, while there
might be a case to be argued, the employer failed to provide a plausible
reason for non-attendance due to a non-existent agreement by both parties’.
[35] Having regard to the record it is clear that:
35.1. At the commencement of the arbitration process, Mr Gilpen stated to
the Commissioner that ‘yesterday afternoon for the first time from an unknown
gentleman or another party, they said look they are not going to be attending
today from an employer’s representer ...’.
35.2. Mr Gilpen failed to inform the Fifth Respondent about the request for
postponement based on sudden illness or to the exchange of emails in that
regard. Also, he failed to indicate that a medical certificate had been provided
which indicated that Mr Nel was booked off for a medical condition. Mr Gilpen
stated that in his ‘ opinion there is no excusable or plausible reason or
explanation for the employer himself not to be here’.
35.3. The Fifth Respondent then states that ‘ it is fine. Look, on our side,
the last mail that I saw was at 09h27 yesterday in the morning. So but then
you made it clear to the Respondent that you are opposing their request for a
postponement’.
35.4. Mr Gilpen argued at the default arbitration process that some
individual from the Applicant should have been present, like the Managing
Director.
[36] Having regard to the facts of the matter before me, it is quite apparent that
[36] Having regard to the facts of the matter before me, it is quite apparent that
Mr Nel sought a postponement and understood the email of the attorneys of the First
to Fourth Respondents as agreeing thereto subject to him producing a sick note. On
the production of the sick note, Mr Nel cannot be faulted in thinking that an
16
agreement was reached. In fact , the quoted meaning of ‘ amenable’ clearly supports
that the attorneys of the First to Fourth Respondents was open to a postponement
as long as a medical note was produced. When it was in fact produced, an
agreement was reached to postpone the matter based on Mr Nel’s ilIness.
[37] I am troubled by Mr Gilpin’s sailing close to the wind by not disclosing the
content of the emails on the day of the arbitration to the Fifth Respondent. He was
duty bound to do so as the matter was being heard effectively as an ex parte
application (in the absence of the other party) where full disclosure of all relevant
information is required.
25 I trust that this will not happen again.
[38] With reference to a defence to the claim, the Applicant raised a jurisdictional
challenge that no dismissal occurred. As such, the First to Fourth Respondents
would bear the onus to establish that a dismissal occurred before the issue of
fairness of an alleged dismissal can be entertained.
[39] For all of the above reasons, I am satisfied that the rescission application
was not wilful , the applicant has provided a reasonable explanation for its non -
attendance and has a bona fide defence in the sense of setting out averments which,
if established at trial , would entitle it to succeed.
26 Also, the rescission application
was not made with the intention to delay.
[40] The Fifth Respondent became aware of the email correspondence
surrounding an agreement to postpone during the rescission application. To not find
that the Applicant’s non- attendance was due to Mr Nel being under the impression
that agreement was reached and suggesting that the Applicant was in wilful default
is irrational. In addition, the Fifth Respondent concedes that the Applicant ‘ might
have a case to be argued’ . This indicates that the Fifth Respondent considered that
the Applicant had prospects of success . An agreement to postpone and prospect of
the Applicant had prospects of success . An agreement to postpone and prospect of
success cries out for rescission to be granted. Not to grant rescission was
25 Section 57.1 of the Legal Practice Council’s Code of Conduct for all Legal Practitioners, Candidate
Legal Practitioners and Juristic Entities of 2019.
26 Melomed Hospital Holdings (Pty) Ltd v DENOSA obo Fourie and Others (C589/2020 ZALCCT 31
(21 June 2023) at para 26.
17
completely irrational.27
[41] Lastly, having regard to the facts and contentions in this matter, the review
application of the Applicant is not an attempted appeal under the guise of a review.
Conclusion
[42] In the premises, I find that the ruling by the Fifth Respondent is reviewable
as he ought to have found that the arbitration award granted was erroneously sought
or erroneously made in the absence of an affected party or granted as a result of a
mistake common to the parties to the proceedings.
[43] The ruling of the Fifth Respondent made under case number GAEK 7090 -22
dated 2 January 2022 in which he refused to rescind the default arbitration award
under the same case number falls to be set aside.
Costs
[44] Even though both parties sought costs in the papers , there is a measure of
culpability on both sides in how this matter was conducted.
[45] Moreover, this Court has a discretion in terms of Section 162 of the LRA to
order costs in accordance with the requirements of the law and fairness.
Furthermore, in Union for Police Security and Corrections Organisation v South
African Custodial Management (Pty) Limited and others
28, the Constitutional Court
has made it clear that costs should only be awarded by this Court in exceptional
circumstances. I am of the view that this is a matter that, in the interests of fairness
and equity, does not warrant a cost order being made.
[46] In the premises, I make the following order:
27 MEC for the Department of Health, Weste rn Cape v Weder; MEC for the Department of Health,
Western Cape v Democr atic Nursing Association of SA on behalf of Mangena (2014) 35 ILJ 2131
(LAC) at para 34.
28 2021 (11) BCLR 1249 (CC) at para 40.
18
Order
1 Condonation for the late service and filing of the review
application is granted.
2 The ruling of the Fifth R espondent made under case
number GAEK 7090-22 on 2 January 2022, in which the Fifth Respondent
refused to rescind the default arbitration award made under case number
GAEK 7090-220 is reviewed and set aside in terms of section 158(1)(g) of the
Labor Relations Act 66 of 1995, and substitut ed with an order that the default
arbitration award is rescinded and set aside;
3 The dispute is r emitted to the Sixth Respondent for
arbitration de novo to be conducted by a commissioner other than the Fifth
Respondent.
4 There is no order as to costs.
D. Pretorius
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant: Advocate P. Kirstein
Instructed by: JW Botes Inc.
For the third respondent: Mr. C.M. Gilpin of Gilpin Attorneys Inc.