IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: J137/25
In the matter between:
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Applicant
KATLHOLO WABILE N.O. Second Applicant
and
NYAKADZINO DOMINIC ZIVAI HWATA Respondent
Heard: 30 July 2025
Delivered: 3 September 2025
JUDGMENT
SASS, AJ
Introduction
1 This matter was enrolled for hearing on Wednesday 30 July 2025 for the
return day of a rule nisi issued on 22 May 2025 by the Honourable Acting Justice
Cithi in repsect of the Applicant’s Contempt of Court application.
2 In terms of that ex parte provisional order (i.e., the rule nisi), the Respondent
was, inter alia:
2.1 subpoenaed to appear before this Court on 30 July 2025 to show
cause, if any, why the Second Applicant ’s contempt ruling dated 10 February
2025 (the CCMA’s contempt ruling), should not be confirmed, alternatively, be
varied or set aside; and
2.2 invited to explain his conduct by way of an affidavit.
3 On 30 July 2025, t he Respondent appeared before this Court in terms of the
rule nisi but t he Applicants failed to appear. In the absence of the Applicants, the
Respondent sought an order in, inter alia, the following terms:
3.1 the discharge of the rule nisi issued against the Respondent;
3.2 striking the matter off the roll due to the non- appearance of the
Applicants; and
3.3 costs in his favour.
4 Counsel for the Respondent submitted that the only relief that this Court could
grant in the circumstances was the discharge of the rule nisi and the striking of the
matter from the roll , notwithstanding the reservation expressed by this Court that,
besides the relief being sought by the Respondent, it could also potentially, in the
exercise of its discretion, grant an extention of the rule nisi and extend the return
date from 30 July 2025 to a later date in order for it to determine on that later date
whether the CCMA contempt ruling should be confirmed, alternatively, be varied or
set aside.
5 In light of the above, t he Court requested the Respondent to file written
submissions in support of the relief he was seeking, and the rule nisi granted on 22
May 2025 was extended on 30 July 2025 pending receipt of the Respondent’s
written submission and this Court’s decision on the appropriate relief to grant in the
circumstances in light of the non-appearance of the Applicants.
Events that transpired after the matter was heard on 30 July 2025
6 On 31 July 2025 and prior to receiving the Respondent’s written submissions:
6.1 I was informed that an employee of the First Applicant, Vongani
Mishack Nghonyama, was present in Court for the return day of the Contempt
of Court application, having erroneously believed that 31 July 2025 was the
return day and not 30 July 2025.
6.2 I directed a secretary of the Labour Court to inform Mr Nghonyama
that if the decision of this Court, which decision was still to be made at that
time, was to discharge the rule nisi granted on 22 May 2025 in light of the
non-appearance of the Applicants on 30 July 2025, the Applicants could apply
to this Court to revive the rule nisi , and as part of any such subsequent
application, would need to file an affidavit setting out, inter alia, the reasons
for their non-appearance on 30 July 2025. It is my understanding that this was
communicated to Mr Nghonyama.
6.3 Mr Nghonyama provided the abovementioned secretary with -
6.3.1 3 (three) lever -arch files containing the indexed and
paginated pleadings and documents for this matter, all reflecting a ‘ 22 July
2025’ date stamp of this Court; and
6.3.2 the First Applicant’s replying affidavit in the Contempt of
Court application deposed to on 25 June 2025 reflecting a ‘ 09 July 2025’ date
stamp of this Court, along with two service affidavits that he had deposed to
on 09 July and 21 July 2025 respectively.
7 These lever-arch file and affidavits did not form part of the court file on 30 July
2025 when the matter was heard and appears to have been in the possession of the
First Applicant on that date.
8 The Respondent’s written submissions were received later during the day on
31 July 2025.
9 On 01 August 2025, Mr Nghonyama filed an affidavit at this Court in which he,
inter alia , sought to explain the reasons for his and the First Applicant’s non -
appearance on 30 July 2025.
Issues to be determined
10 In light of the above and the non- appearance of the Applicants on 30 July
2025, the Court is required to determine the following:
10.1 whether to discharge the rule nisi issued on 22 May 2025 and strike
the matter from the roll;
10.2 whether to extend the rule nisi further and to a later date when it can
decide whether to confirm the CCMA’s contempt ruling, alternatively, vary or
set it aside; or
10.3 whether any other relief should be granted in the circumstances –
such as possibly deciding whether to confirm the CCMA’s contempt ruling,
alternatively, vary or set it aside.
Analysis
11 Starting with the third alternative from the preceding paragraph, it is apparent
from the events that transpired on 31 July and 01 August 2025 that the Applicants
had filed a replying affidavit which they required the Court to consider before
deciding whether to confirm the CCMA’s contempt ruling, alternatively, vary or set it
aside. The Respondent did not bring the existence of this replying affidavit to t he
Court’s attention on 30 July 2025 and it is unclear whether he was aware of it . In the
circumstances, it would not be appropriate for this Court to decide whether to confirm
the CCMA’s contempt ruling, alternatively, vary or set it aside, at this point, having
regard to what had transpired on or after 30 July 2025.
12 Rule 58(4) of the Rules of this Court states the following: “ If a defence is
raised by the respondent, the court may either hear the matter on the date on which
the respondent was ordered to appear in court or postpone the matter. ” This rule
therefore does contemplate that the matter will not necessarily be heard finally on
the return day if the Respondent has raised a defence to the Contempt of Court
application of the Applicants. The Respondent has done so by virtue of his
answering affidavit deposed to on 9 June 2025. Moreover, the Applicants have
responded to that defence by virtue of the replying affidavit mentioned above
(ostensibly filed on or about 09 July 2025, although a copy thereof was not in the
court file on 30 July 2025).
13 The Court now turns to consider the first and second alternatives in paragraph
10 above.
14 The Court is not necessarily compelled to discharge the rule nisi if the
Applicants are not present in court on the return day. The Court has a discretion to
exercise in this regard, which it is required to exercise judicially, taking into account
any potentially relevant factors, such as , inter alia , prima facie indications of the
reasons for the absence of the Applicants, prejudice to the Respondent, the merits of
the case etc.
15 The absence of the Applicant s appears to be due to a misunderstanding on
their part. This, however, only came to light on 0 1 August 2025 (after the matter was
heard on 30 July 2025). Whilst the appropriate time to consider any explanation
from the Applicants about their non- appearance might be as part of an application to
revive a lapsed or discharged rule nisi , as explained in more detail below, this Court
cannot completely disregard the contents of the affidavit filed on 01 August 2025
explaining the absence of the Applicants. The Respondent was also not made aware
of the reason for non- appearance of the Applicants on 30 July 2025 and has not
been placed in a position to respond to the explanation of the
miscalculation/misunderstanding provided by the Applicants . It would therefore not
be appropriate for the Court to excuse the non- appearance of the Applicants at this
point. The appropriate time for this to be considered, if necessary, would be in an
application to revive the lapsed or discharged r ule nisi if indeed it lapses or is
discharged.
discharged.
16 To the extent that any prejudice may be suffered by the Respondent if the rule
nisi was extended (and not discharged due to the non- appearance of the
Applicants), such prejudice may be addressed sufficiently through an appropriate
costs order in favour of the Respondent. Insofar as the prejudice to the Applicants in
the event that the rule nisi is discharged, the discharge would not have occurred
save for their own misunderstanding/miscalculation and they would have recourse to
the procedure set out in Rule 27 of the Uniform Rules of Court (Rule 27 of the URC)
as addressed in more detail below.
17 As for the merits of the Contempt of Court application, the fact that a rule nisi
was issued on 22 May 2025 is indicative of, at the very least, the presence of a
prima facie case against the Respondent.
18 The Respondent’s counsel relied on a number of authorities in the written
submissions.
19 Reliance was placed on the case of Fis cher v Fis cher1. The Fischer case,
however, dealt with a situation where the rule nisi had lapsed because the Applicant
had failed to take steps within the time period laid down in terms of the rule nisi that
was issued, and the Court held that it did not have the power to revive a rule nisi in
those circumstances. Notwithstanding this, the Fischer case is credited with giving
rise to Rule 27(4) of the URC . Rule 27(4) reads as follows: “ (4) After a rule nis i has
been discharged by default of appearance of the applicant, the court or a judge may
revive the rule and direct that the rule so revived may not be served again”.
Therefore, where a rule nisi is discharged by default of appearance of the applicant
on the return day, the Uniform Rules of Court allow for an applicant to bring an
application in terms of Rule 27(4) to revive the life of the discharged rule. In this
Court, an applicant would be able to rely on Rule 27(4) URC read with Rule 71 of the
Rules of this Court. The creation of Rule 27(4) and the wording thereof does point
towards the discharge of the rule nisi being the appropriate order /relief where the
applicant does not appear on the return day (i.e., by default of appearance by the
applicant).
20 Reliance was also placed on the case of South African Broadcasting
applicant).
20 Reliance was also placed on the case of South African Broadcasting
Corporation v CCMA and Others 2. In the SABC case, however, the Court held that
the non- appearance of the applicant may justify the dismissal of the matter or the
striking off of a matter as it reflect s a lack of intent to pursue the case. For the
reasons as already addressed above, it does not appear that there is no intention on
1 1965 (4) SA 644 (W)
2 [2007] ZALC 22
the part of the Applicants to pursue the case and there is no reasonable basis for this
Court to interpret the absence of the Applicants on 30 July 2025 as such.
Conclusion
21 This Court may discharge the rule nisi due to the non- appearance of the
Applicants on the return day. Whilst it is not necessarily obliged to do so, the
discharge of the rule nisi would be the most appropriate and conventional relief in the
circumstances if one has regard to R ule 27(4) procedure and the rationale for its
creation (to address the revival of a rule nisi which has been discharged due to the
non-appearance of the applicant). This relief is essentially the relief as envisaged by
Rule 27(4) in these circumstances.
22 This relief does not, necessarily, bring an end to the matter or preclude the
Applicants from pursing further steps in relation to the C CMA’s contempt of ruling.
This relief does, however, at least in the interim (if the Applicants do elect to bring an
application to revive the discharged rule nisi ), relieve the Respondent of the burden
placed on him of an interim ex parte provisional order of contempt of court. This
outcome is just and equitable in the circumstances and achieved through the
discharge of the rule nisi.
23 The Applicant s may, should they so choose, proceed with an application in
terms of Rule 27(4) of the URC read with Rule 71 of the Rules of this Court . In such
an application, the Applicant s will have an opportunity to provide a satisfactory
explanation to this Court for their absence on 30 July 2025.
Costs
24 With respect to the issue of costs, and in terms of section 162 of the LRA, this
Court has a wide discretion. The Constitutional Court has provided some guidance
as to how this discretion is to be exercised.
25 In Union for Police Security and Corrections Organisation v SA Custodial
Management (Pty) Ltd and Others3 that Court said:
3 (2021) 42 ILJ 2371 (CC) at para 35.
‘In the labour context, the judicial exercise of a court’s discretion to award
costs requires, at the very least, that the court must do two things. First, it
must give reasons for doing so and must account for its departure from the
ordinary rule that costs should not be ordered. Second, it must apply its mind
to the dictates of the fairness standard in s 162, and the constitutional and
statutory imperatives that underpin it …’
26 In Booi v Amathole District Municipality and Others4 that Court also said:
‘However, this is a labour matter and this court’s jurisprudence is settled: the
ordinary rule that costs follow the result does not apply in labour
matters. Rather, what emerges from the provisions of the LRA , and the
jurisprudence is that courts, when awarding costs in labour disputes, must
consider what fairness demands and err on the side of not discouraging
parties from approaching the courts for the peaceful resolution of labour
disputes.
[54] Further, if costs are to be awarded in labour matters, there must
be reasons that justify a court’s decision to depart from the position that a
losing party should not be mulcted in costs in labour disputes…’
27 This Court may therefore award costs, and when doing so, what is required is
a proper consideration of the dictates of fairness to both parties, followed by an
exposition of the reasoning why, despite the general principle in employment law
disputes that costs do not follow the result, it nonetheless decided to award costs.
5
28 The present case is unfortunately one which may justify a departure, albeit
conditionally only, from the ordinary principle that costs do not follow the result.
29 The First Applicant is a statutory body and national public entity responsible
for the resolution of labour disputes through conciliation, mediation and arbitration. It
is the dominus litis in this matter. It pursued and obtained an interim ex parte
is the dominus litis in this matter. It pursued and obtained an interim ex parte
provisional order of contempt of court against the Respondent . It should have been
present in court on 30 July 2025. It should have ensured that the replying affidavit,
4 (2022) 43 ILJ 91 (CC) at para 60.
5 As said in SA Custodial Management (supra) at para 34: ‘Do the principles I have enunciated dictate
that costs can never be ordered against a party in labour matters? I think it is clear from this court’s
jurisprudence that the answer to this question is a resounding ‘no’. This court has previously affirmed
the principle that costs are discretionary to the court adjudicating a matter. That applies no differently
to labour matters …’.
service affidavits and/or lever arch files, which it had in its possession on 31 July
2025 and which was not part of the court file on 30 July 2025, was part of the court
file on 30 July 2025. The First Applicant , in exercising its right of access to the
Courts must do so in a responsible manner and in compliance with the processes of
the Court.6 The First Applicant’s absence on 30 July 2025 and its retention of court
papers in its possession which should have been in the court file, is a departure from
this.
30 In the present circumstances, the interests of justice will not be best served by
not making any order as to costs whatsoever. This is a case in which a balance must
be struck though. The Respondent incurred legal costs by engaging legal
representatives for the proceedings on 30 July 2025. Should the Applicants proceed
with an application to revive the discharged rule nisi , the Respondent may have to
incur further legal costs i n opposing such an application and further legal costs in
opposing the Contempt of Court application if the rule nisi is revived. If the Applicants
do not proceed with the revival application, then the Respondent will not incur further
legal costs.
31 It is therefore just and equitable in the circumstances to not permit the First
Applicant to avoid any consequences at all in respect of the Respondent ’s costs
occasioned by the absence of the Applicants on 30 July 2025 if they do decide to
proceed with a Rule 27(4) application.
32 For all the reasons as set out above, this Court exercises its discretion by
deciding that a conditional costs award against the First Applicant is justified, and the
First Applicant should be ordered to pay the R espondent’s wasted costs of the day
on 30 July 2025 on the party and party scale (including the costs of one counsel)
only in the event that the First Applicant either: (i) applies to revive the discharged
rule nisi ; alternatively (ii) institutes a de novo Contempt of Court application in
rule nisi ; alternatively (ii) institutes a de novo Contempt of Court application in
relation to the CCMA’s contempt ruling dated 10 February 2025.
33 In the circumstances, the following order is made:
6 See Ntombela and Others v United National Transport Union and Others (2019) 40 ILJ 874 (LC) at
para 70; Mashishi v Mdladla NO and Others (2018) 39 ILJ 1607 (LC) at para 14; Ngobeni v
Passenger Rail Agency of SA Corporate Real Estate Solutions and Others (2016) 37 ILJ 1704 (LC) at
para 14.
Order
34 The rule nisi issued by this Court on 22 May 2025, and extended on 30 July
2025 in order for this Court to consider whether or not to discharge the rule nisi in
light of the non-appearance of the Applicants on the return day of the rule nisi on 30
July 2025, is discharged.
35 The Respondent is awarded his wasted costs of the day on 30 July 2025, on
the party and party scale, including the costs of 1 (one) counsel, but only in the event
that the First Applicant either: (i) applies to revive the discharged rule nisi ;
alternatively (ii) institutes a de novo Contempt of Court application in relation to the
CCMA’s contempt ruling dated 10 February 2025.
M. Sass
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicants – No appearance.
For the Respondent – Advocate Prince Mafu