THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR198/2022
In the matter between:
THENGA HOLDINGS (PTY) LTD Applicant
and
COMMISSIONER RICHARD BYRNE N.O First Respondent
J BOOYSEN Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Third Respondent
SEDZANI THENGA Fourth Respondent
Heard: 20 May 2025
Delivered: 29 September 2025
JUDGMENT
SCHENSEMA, AJ
2
Introduction
[1] This is an opposed application brought by the applicant in terms of which the
applicant seeks various relief pertaining to a rescission ruling (Ruling) and
subsequent default award.
[2] The applicant has intertwined the grounds of review relating to the R uling and
the default award in its founding affidavit , and for this reason, this judgment
will consider the Ruling as well as the default award. H aving said this ,
however, it is obvious that were the review application in respect of the R uling
to succeed, it would not be possible to give effect to the default award.
[3] In terms of the default award, the applicant was ordered to reinstate the third
respondent in the same position and on the same terms and conditions of
employment that existed prior to her dismissal, together with backpay in the
amount of R600 000.00. The reinstatement was effective from 15 October
2021.
[4] This matter also consists of two Rule 11 applications , and it is therefore
necessary to set out the background to the matter in order to place the review
application into its proper context.
[5] The applicant, upon receipt of the R uling on 30 November 2021, served its
review application, in respect of the R uling and the default award on the
respondents on 31 January 2022.
[6] In terms of the notice of motion, the applicant sought (a) condonation for the
late filing of the review application; (b) the default award be reviewed and set
aside; (c) the Ruling be reviewed and set aside; and (d) the CCMA be
directed to set down the unfair dismissal dispute to be heard afresh.
[7] Attached to the founding affidavit to the applicant’s review application are a
number of annexures , which inter alia include the default award, recission
application, applicant’s arbitration documents and Ruling.
[8] On 10 February 2022, the applicant’s erstwhile attorneys Mafona Ramothwala
Incorporated served and filed an index of the record that it erroneously refer s
3
to as an index in terms of Rule 7(5) of the Labour Court Rules 1 and attached
the record of the proceedings, which record did not include the transcription of
the audio disc that had been delivered to the Labour Court by the CCMA on 3
February 2022. The record that was served and filed comprises 431 pages.
[9] Subsequent to the filing of the index and record, Mafona Ramothwala
Incorporated, on behalf of the applicant , filed what they had also erroneously
referred to as a notice in terms of Rule 8(b) of the Labour Court Rules on 18
February 2022, in respect of which the applicant notified the parties that it
had:
‘perused the record filed in terms of Rule 7A(5) of the Labour Court Rules,
decided to stand by its Notice of Motion dated 2 February 2022 and, thus,
shall not file a supplementary affidavit in respect thereof.’ (own emphasis)
[10] In response to the review application and the applicant’s Notice in terms of
Rule 8(b), the third respondent ’s attorneys of record served a notice to
oppose and the third respondent’s opposing affidavit on 25 February 2025.
[11] On 18 March 2022, the applicant served and filed what I will refer to as its
‘first’ Rule 11 application in respect of which the applicant sought the following
relief:
11.1 An amendment to its Notice of Motion to read as follows:
‘1.1 The execution of the award which was granted under the auspices of
the Commission for Conciliation, Mediation and Arbitration (the
CCMA) under case number: GATW2074/21 on the 5th of October 2021
in terms of which Sedzani Thenga (Third Respondent in the review
application) is reinstated as an employee of Applicant is stayed
pending the finalisation of the review application Applicant brought in
this Honourable Court.
1.2 The late filing of this application by Applicant be condoned.
1.3 The award granted by First Respondent (“the Commissioner”) under
the auspices of the Second Respondent in case number:
the auspices of the Second Respondent in case number:
1 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court (repealed, effective 17
July 2024).
4
GATW2074/21 on the 5 th of October 2021 in terms of which Third
Respondent is reinstated as an employee is hereby reviewed and set
aside.
1.4 The Ruling made by First Respondent under the auspices of the
Second Respondent on the 30 th of November 2021 under case
number GATW2074/21 dismissing Applicant’s rescission application is
hereby reviewed and set aside.
1.5 The application brought by Sedzani Thenga under case number
J233/2022 is consolidated with Applicant’s review application brought
under case number: JR198/2022 and that both matters are regarded
as one and the same proceedings, and subject to this Honourable
Court’s directive(s), as to the filing of further pleadings.
1.6 Sedzani Thenga’s possession of a motor vehicle known as BMW M4
Series with registration number: FG 54 XB (GP) (“the motor vehicle”)
is unlawful.
1.7 Sedzani Thenga is ordered to return the motor vehicle to Applicant
within 2 (two days) from date of the order of this Honourable Court.’
(sic)
[12] The first Rule 11 a pplication was opposed by the third respondent by way of
an opposing affidavit, which was served and filed on 31 March 2022. In reply
to which, the applicant only served and filed a replying affidavit on 2
September 2022.
[13] On 2 September 2022, the applicant appointed new attorneys, Victor
Nkhwashu Attorneys Incorporated, and in confirmation hereof served a Notice
of Appointment of Attorneys of Record.
[14] In addition to the aforementioned replying affidavit in respect of the first Rule
11 application, the applicant’s new attorneys of record also served and filed a
Notice in terms of Rule 7A(6) together with a consolidated bundle containing
the record of the proceedings and the transcripts of the default arbitration
proceedings.
5
[15] In addition to the notices and consolidated bundle, the applicant also filed a
supplementary affidavit in terms of Rule 7A8(a) of the now-repealed Labour
Court Rules.
[16] The applicant further elected to file a ‘second’ Rule 11 Application on 2
September 2022, in which the applicant sought an order, (a) declaring the
purported Rule 8(b) notice attached to the founding affidavit as annexure
‘TH2’ to be irregular and of no force and effect; (b) that the review application
under the above case number be reinstated; and (c) condoning the late filing
of the applicant’s supplementary affidavit.
[17] Of significance is that the Notice of Motion to the second Rule 11 application
does not seek condonation for the late filing of the transcribed record;
however, condonation is sought in the founding affidavit.
[18] The second Rule 11 Application is similarly opposed by the third respondent
in her opposing affidavit of 15 September 2022, in response to which the
applicant served and filed a replying affidavit on 23 September 2022.
The Rule 11 Applications
The First Rule 11 Application – March 2022
[19] As aforementioned, the applicant had elected to launch two Rule 11
applications in which it sought various relief.
[20] For the reasons that follow, I am of the view that no basis has been
established as to why the applicant and its attorneys deemed it necessary to
launch these applications. I say this for the following reasons:
20.1 In respect of the notice of motion that was served in January 2022, the
applicant had already sought condonation for the late filing of the
review application; (b) the default award be reviewed and set aside; (c)
the Ruling be reviewed and set aside; and (d) the CCMA be directed to
set down the unfair dismissal dispute to be heard afresh.
6
20.2 Upon receipt of the answering affidavit to the founding affidavit, in
February 2022, the third respondent raises a number of criticisms in
her answering affidavit in respect of the relief sought by the applicant ,
thereafter which the applicant elected to launch its first Rule 11
application in which it sought to amend its notice of motion by including
the additional prayers as set out in 1.5 to 1.7 above.
20.3 In respect of the relief sought pertaining to the return of the BMW in
prayers 1.6 and 1.7 above, it is clear from the pleadings that there is a
dispute of fact, which this Court is unable to determine.
20.4 In respect of the relief sought in prayer 1.5 above, at the hearing of the
review application, a copy of the third respondent’s notice of withdrawal
in relation to her application filed under case number J233/2022 was
provided to me. In light hereof , there is no need for this C ourt to make
a determination in respect of the consolidation of the matters.
20.5 In respect of the second Rule 11 application launched in September
2022, similarly , no basis has been established as to why this
application was necessary for the following reasons:
20.5.1 Despite the incorrect citing of the Rule pertaining to
supplementing the founding affidavit and filing of a record, there
can be no dispute that it was the applicant’s intention in
February 2022 to stand by its notice of motion and founding
affidavit and that it filed the record, which excluded the transcript
of the arbitration proceedings, in February 2022.
20.5.2 In respect of the explanation provided, t he applicant once again
seeks to blame its attorneys for its failure to file the transcribed
record and to supplement the founding affidavit . It is trite that
there is a limit beyond which a litigant cannot escape the results
of its attorney’s lack of diligence. It has never been the law that
invariably, a litigant will be excused if the blame lies with the
invariably, a litigant will be excused if the blame lies with the
attorney; to hold otherwise might have a disastrous effect upon
the observance of the rules of this court and s et a dangerous
7
precedent.2 It is for this reason that condonation for the late filing
of the supplementary affidavit is not condoned.
20.5.3 In respect of the relief to reinstate the review application on the
basis that the applicant believed that the matter had become
archived, this is simply incorrect. With reference to the now
repealed Practice Manual, at paragraph 11.2.7:
‘A review application is by its nature an urgent application. An
applicant in a review application is therefore required to ensure
that all the necessary papers in the application are filed within
twelve (12) months of the date of the launch of the application
(excluding heads of a rgument) and the registrar is informed in
writing that the application is ready for allocation for hearing.
Where this time limit is not complied with, the application will
be archived and be regarded as lapsed unless good cause is
shown why the application should not be archived or be
removed from the archive.’
20.6 Given that the review application was served and filed in January 2022,
and the record of the proceedings (excluding the transcribed record)
was filed in February 2022, and the 12- month period had not yet
elapsed, the applicant is not required to apply for reinstatement of the
review application.
[21] For the aforementioned reasons, the two Rule 11 applications are dismissed.
Condonation for the late filing of the review application
Degree of lateness
[22] The applicant received the R uling dated 30 November 2021, on 1 December
2021. In response to the R uling, the applicant instructed their attorneys at the
time, Selomo Attorneys, to launch the review application.
[23] Notwithstanding the applicant’s instruction, this instruction had not been
complied with, which came to the realisation of the applicant upon receipt of
2 Superb Meat Supplies CC v Maritz (2004) 25 ILJ 96 (LAC).
8
the third respondent’s application to certify the default award on 14 January
2022. After making enquiries with Mr Selomo, the applicant was dissatisfied
with his responses and, on 18 January 2022, terminated Selomo Attorneys’
mandate and appointed Mafona Ramothwala Incorporated.
[24] Subsequent to the termination of Selomo Attorneys’ mandate, the applicant’s
new attorneys attempted to obtain information from Selomo Attorneys, which
request was ignored. The applicant’s attorneys also corresponded with the
third respondent’s attorneys of record on 18 January 2022 in which they were
informed that Mafona Ramothwala Incorporated had been instructed to assist
the applicant.
[25] The applicant holds the view that the review application is only five days late,
in that the period has been cal culated from 7 to 14 January 2022. However ,
upon perusal of the review application, which is dated 27 January 2022 and
was further served on the parties on 31 January 2022, the five -day period as
calculated by the applicant is clearly incorrect.
[26] It is trite that an applicant has six weeks in which to file a review application
upon receipt of an award or R uling. In this regard the applicant has confirmed
by way affidavit that it had received the R uling on 1 December 2021,
accordingly the due date for the review application was 12 January 2022. The
review application is therefore 12 court days late, contrary to the applicant’s
assertion that it was only 5 days late. Whilst the delay is not excessive, it is
not insignificant.
The explanation for the delay
[27] As aforementioned, the applicant has submitted the reasons for the delay ,
which reasons relate to Selomo Attorneys ’ failure to comply with its
instructions to file the review application.
[28] It is clear that upon receipt of the application to certify the default award, the
applicant took numerous steps to ensure that the review application was
served and filed.
9
[29] In opposition, the third respondent in her opposing affidavit criticises the
applicant for not attaching a confirmatory affidavit of Mr Selomo. Furthermore ,
it would not have been possible for the review application to have been
launched without the applicant’s involvement.
Analysis of the condonation application for the late filing of the review application
[30] The relevant legal principles to be applied in an application for condonation
are well established. This Court is required to exercise a discretion, having
regard to the extent of the delay, the explanation for that delay, the prospects
of success and the relative prejudice to the parties that would be occasioned
by the application being granted or refused. The interest of justice will
ordinarily reflect regard for all these factors.
[31] In A Hardrodt (SA) (Pty) Ltd v Behardien and others
3 (Hardrodt), the Labour
Appeal Court (LAC) restated the guidelines laid down in Queenstown Fuel
Distributors CC v Labuschagne NO and others 4 and held inter alia that there
must be good cause shown for condonation in the sense that the reasons
tendered for the delay have to be convincing. In other words, the excuse for
non-compliance with the time periods must be compelling. The onus is on the
applicant to satisfy the Court that condonation should be granted.
[32] The general principles applicable to deciding applications for condonation
apply even more stringently when it comes to review applications. In National
Union of Metalworkers of SA on behalf of Thilivali v Fry’s Metals (A Division of
Zimco Group) and others
5 (Thilivali), the Court said:
‘What is clear from the judgment in Hardrodt is that general principles
applicable to condonation applications are even more stringently applied
where it comes to a condonation application for the late filing of a review
application. In review condonation applications, the explanation that needs to
be submitted must be compelling and the prospects of success need to be
be submitted must be compelling and the prospects of success need to be
3 (2002) 23 ILJ 1229 (LAC).
4 (2000) 21 ILJ 166 (LAC).
5 (2015) 36 ILJ 232 (LC) at para 22.
10
strong. Where it comes to the issue of prejudice, the applicant in fact has to
show that a miscarriage of justice will occur if the applicant’s case is not
heard. The reason for these more stringent requirements is that review
applications occur after the parties have already been heard, presented their
respective cases and a finding has been made. Under such circumstances,
considerations of justice, fairness and expedition require that challenges of
such findings must not be delayed and must be completed as soon as
possible.’
[33] The courts have held and emphasised that an applicant must necessarily act
with the degree of diligence required, thus giving effect to the statutory
imperative of expeditious dispute resolution.
[34] The onus is on the applicant seeking condonation to satisfy the Court that
condonation should be granted. In employment disputes, there is an
additional consideration which applies in determining whether the onus has
been discharged, as was held in Thilivali:
6
‘There is, however, an additional consideration which applies in employment
disputes in determining whether an applicant for condonation has discharged
this onus. This is the fundamental requirement of expedition. The
Constitutional Court has, as a matter of fundamental principle, confirmed that
all employment law disputes must be expeditiously dealt with and any
determination of the issue of good cause must always be conducted against
the back drop of this fundamental principle in employment law.’
[35] In summary: the Courts have endorsed the principle that where there is a
delay with no reasonable, satisfactory and acceptable explanation for the
delay, condonation may be refused without considering prospects of success ,
and to grant condonation where the delay is not explained may not serve the
interests of justice. The expeditious resolution of labour disputes is a
fundamental consideration.
[36] Notwithstanding the aforementioned principle, a measure of flexibility has
[36] Notwithstanding the aforementioned principle, a measure of flexibility has
been applied where required in the interests of justice. In National Education
Health and Allied Workers Union obo Mofokeng and Others v Charlotte
6 Thilivali at para 25.
11
Theron Children’s Home7, it was determined that, in the interest of justice, the
case should proceed, as the policy in question appeared to be deeply
influenced by a racist perspective and was perpetuating ongoing racial
discrimination. In this case , the circumstances were described as
‘exceptional’, thereby justifying less focus on the unexplained periods of
delay.
[37] In the matter of Government Printing Works v Public Service Association and
another8 the Labour Appeal Court held that:
‘[26] Judicial discretion involves a value judgment based on the facts of the
case. The Labour Court must be fair to both sides. It must also
consider the broader objects of the LRA, including the importance of
expeditious resolution of employment disputes. The facts that must be
considered in determining whether or not it is in the interests of justice
to grant condonation, and the appropriate approach, have now been
resolved as follows:
“[22] … [T]he concept “interests of justice”… includes: the nature of
the relief sought; the extent and cause of the delay; the effect
of the delay on the administration of justice and other litigants;
the reasonableness of the explanation for the delay; the
importance of the issue…’ and the prospects of success . It is
crucial to reiterate that… the ultimate determination of what is
in the interests of justice must reflect due regard to all the
relevant factors but it is not necessarily limited to those
mentioned above. The particular circumstances of each case
will determine which of these factors are relevant. (own
emphasis)
[23] it is now trite that condonation cannot be had for the mere
asking. A party seeking condonation must make out a case
entitling it to the court’s indulgence. It must show sufficient
cause. This requires a party to give a full explanation for the
non-compliance with the rules or court’s directions. Of great
7 [2004] 10 BLLR 979 (LAC).
8 [2025] 2 BLLR 112 (LAC) at para 26.
12
significance, the explanation must be reasonable enough to
excuse the default…
[51] The interests of justice must be determined with reference to
all relevant factors. However, some of the factors may
justifiably be left out of consideration in certain circumstances.
For example, where the delay is unacceptably excessive and
there is no explanation for the delay, there may be no need to
consider the prospects of success. If the period of delay is
short and there is an unsatisfactory explanation but there are
reasonable prospects of success, condonation should be
granted. However, despite the presence of reasonable
prospects of success, condonation may be refused where the
delay is excessive, the explanation is non-existent and
granting condonation would prejudice the other party. As a
general proposition the various factors are not individually
decisive but should all be taken into account to arrive at a
conclusion as to what is in the interests of justice.”
[27] This description evokes a balancing approach, characterised by
proportionality and flexibility. The general principle remains that the
various factors are to be considered collectively, and not mechanically,
in determining the interests of justice.’
[38] It is in this context that the application for condonation stands to be
determined.
Explanation for the delay
[39] It is trite that a failure to comply with the timeframes must be explained, and
the reasonableness of the delay should be considered by having regard to the
explanation for the delay.
[40] The explanation for the delay has to be compelling, convincing and
comprehensive and should cover every period of the delay. 9 Furthermore that
the explanation provided is reasonable and acceptable. In this regard an
9 Van Wyk v Unitas Hospital and Another 2008 (4) BCLR 442 (CC).
13
applicant in a condonation application is required to provide an explanation for
the entire period of the delay and the aspects related thereto.
[41] The applicant ’s condonation application is purely based on their former
attorneys Selomo Attorneys’ negligence to file the review application
timeously.
[42] The case law is trite that an applicant cannot hide behind the negligence of its
legal representative.
[43] In Superb Meat Supplies CC v Maritz
10, the court held that there have been
frequently repeated judicial warnings that there is a limit beyond which a
litigant cannot escape the results of his attorney’s lack of diligence or the
insufficiency of the explanation tendered. It has never been the law that ,
invariably, a litigant will be excused if the blame lies with the attorney ; to hold
otherwise might have a disastrous effect upon the observance of the rules of
this court and set a dangerous precedent. It would invite and encourage laxity
on the part of practitioners.
[44] This principle was enunciated in the PPWAWU & Others v AF Dreyer & Co
(Pty) Ltd
11 where the court held that:
‘On the one hand it must be said in favour of the dismissed employees that they
entrusted their case to their trade union and were entitled to assume that the
union would act with their best interests in mind. There is no suggestion that they
knew of the time limits laid down in the Act nor that they were aware, or must
have become aware, of the delay in prosecuting their claim. On the other hand,
as the courts have stressed many times, there is a limit to which a litigant can
rely on the negligence of his representative in failing to comply timeously with
time limits.’
[45] Notwithstanding the case law referred to above as well as my findings in
respect of the second Rule 11 application, the time frame in respect of the
filing of the review application clearly demonstrates that the applicant did not
simply stand by when it became aware that its attorneys had failed to comply
simply stand by when it became aware that its attorneys had failed to comply
10 Supra fn 2 at para 16. See also Saloojee and Another, NNO V Minister of Community Development
1965 (2) SA 135 (A) at 141C.
11 [1997] 9 BLLR 1141 (LAC) at para 14.
14
with instructions to launch the review application. Accordingly, the ‘ limit’
contemplated in the aforementioned authorities , in my view, has not been
reached, as this is not a case of an inordinate delay where the applicant took
no steps to ensure that the review application was pursued.
[46] In considering the timeframe explained by the applicant, I am therefore
satisfied that the applicant has provided an explanation for the late filing of the
review application.
Prospects of success
[47] For purposes of properly determining the condonation application and for the
aforementioned reasons, I have not limited my assessment of the review
application on the basis of the reasons for the delay only.
[48] In order to ensure that this process is complete, I have further considered the
prospects of success in order to determine whether there are compelling
reasons for this Court to grant condonation.
[49] It is obvious that were the review application in respect of the R uling to
succeed, it would not be possible to give effect to the default award in respect
of which the Commissioner reinstated the third respondent.
[50] It is uncontroversial that the review test is whether an arbitrator has
misconceived the nature of the enquiry or arrived at an unreasonable result.
12
A result will be considered to be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material presented to him or her.13
[51] The evidence contained in the documents, which were served on 10 February
2022, i.e. excluding the transcript of the default arbitration proceedings ,
clearly highlights the Commissioner’s failure to properly evaluate the evidence
before him, as well as his failure to consider the obvious conflict of interest
that existed between the parties.
12 SA Rugby Union v Watson and Others (2019) 40 ILJ 1052 (LAC) at para 25.
13 ibid.
15
[52] It is also evident that had the Commissioner properly considered the sanction
imposed at the internal disciplinary enquiry, where Advocate Seboko in his
outcome summarised the evidence and, at paragraph 31, recorded that the
third respondent herself admitted she no longer trusted her employer , the
Commissioner ought to have taken this into account before considering
whether reinstatement was appropriate. Based on the above, the applicant
has demonstrated that it has prospects of success in this matter.
Prejudice
[53] The potential prejudice to the third respondent must be balanced against the
prejudice faced by the applicant. Should the third respondent also have
reasonable prospects of success, the matter can be remitted to the CCMA,
allowing both parties to present their respective cases. Although some
prejudice to the third respondent cannot be excluded, the prejudice to the
applicant in these circumstances substantially outweighs that of the third
respondent.
[54] For these reasons, I am of the view that a basis has been established by the
applicant to justify its shortcomings in its late filing of its review application,
which shortcomings are to be overlooked in the interests of justice.
Background
[55] The applicant summarises the facts in its founding affidavit as follows:
55.1 The third respondent was appointed as the Deputy Chief Executive
Officer of the applicant on about 1 August 2020, earning a salary of R1
023 670,30 per annum, as per a written contract of employment.
55.2 The applicant was run by "the Thenga family", namely the late Mr MC
Thenga ("Mr Thenga" ) and his wife , Ms Sithabiso Nompilo Thenga
("Ms Thenga").
55.3 Ms Thenga, the deponent to all of the applicant’s affidavits, is the sole
director, shareholder, and chairperson of the Board. The third
respondent is her sister -in-law, as Ms Thenga’s late husband was the
16
third respondent’s brother. The applicant is an associated company of
Goliah Capital (Pty) Ltd (“GC”), which it utilised to provide performance
guarantees, a prerequisite for securing major construction and related
engineering projects.
55.4 On 3 September 2020, the applicant was awarded a project worth
R23.7 million by the Gamagara Local Municipality in respect of which a
performance guarantee was required.
55.5 Following the passing of Ms Thenga’s husband, who had been a
director of GC, it became necessary to remove him as director and
appoint Ms Thenga in his place in order for the required performance
guarantee to be issued.
55.6 When the change was attempted on the CIPC system, it became
apparent that the third respondent had altered the CIPC login details ,
thereby preventing Ms Thenga and another employee from accessing
the CIPC database and effecting the required changes.
55.7 Ms Thenga requested that the third respondent provide the login
details on 2 and 4 to 10 November 2020, as the performance
guarantee was required by no later than 13 November 2020. By 13
November 2020, the third respondent refused to provide the login
details.
55.8 The basis for the third respondent's refusal was that she was of the
view that she had a claim as heir in Mr Thenga's deceased estate, and
she believed that providing the login details would somehow
compromise her in this regard.
55.9 The third respondent was of the view that the executors of her late
brother's estate were to be effecting changes of this nature, but
ultimately it became clear that the third respondent prioritised her
personal interests over her fiduciary duties to the applicant as an
employee.
17
55.10 The third respondent did not provide the login details even after the
executors confirmed that the intended change was permissible. She
was ultimately suspended and brought before a disciplinary enquiry ,
and was dismissed.
[56] Dissatisfied with her dismissal, the third respondent referred an unfair
dismissal dispute to the CCMA. Prior to the commencement of the arbitration,
the applicant’s attorney of record at the time, Mr Selomo , on behalf of the
applicant, raised a jurisdictional point, the outcome of which resulted in the
CCMA confirming that it had jurisdiction to arbitrate the dispute.
[57] The third respondent’s attorney of record also brought an application for legal
representation, which application was not opposed by the applicant. It is clear
from these facts alone that the applicant was legally represented and ha d
every intention of defending the unfair dismissal dispute.
[58] The arbitration was subsequently set down on 23 Sept ember 2021, and the
applicant’s erstwhile attorneys mistakenly believed that the arbitration had
been scheduled for 12h00 (not 09h00). As a result, the arbitration proceeded
in the absence of the applicant.
[59] The applicant’s attorney of record subsequently filed a rescission application,
in accordance with section 144 of the Labour Relations Act
14 (LRA).
The Ruling
[60] Rescission was refused by the Commissioner inter alia on the basis that he
had not accepted the explanation provided by Mr Selomo, that the merits
were weak and further determined that the CCMA ’s attendance register ,
which was attached to the rescission application, ‘showed signs of possible
tampering’. How the Commissioner made this determination is not explained
by him in the Ruling.
The Default Award
14 Act 66 of 1995 as amended.
18
[61] The Commissioner , in his analysis, determined that an executor ‘ steps into
the shoes of the deceased person’ and accordingly has the sole authority to
effect changes to management, and in light hereof, any instruction by another
person to make changes to the directorship of one of the companies in the
estate without the consent of the executor would therefore be unlawful.
[62] In light of the above, the Commissioner found that the instruction given to the
third respondent was unlawful and, as such, she could not be guilty of gross
insubordination. Despite this finding, the Commissioner was of the view that
the third respondent should nevertheless have requested the executor to
effect the changes to the CIPC documents.
[63] Notwithstanding the above, the Commissioner held that the third respondent’s
dismissal was substantively unfair and that there was no basis for denying her
reinstatement with full retrospective effect
Grounds of review
[64] The applicant holds the view that in respect of the Ruling and Default Award,
the Commissioner failed to inter alia take into consideration the following:
64.1 the recission application clearly demonstrated that no fault could be
established on the part of the application;
64.2 there was no basis for the applicant’s erstwhile attorney to have
believed that the matter had been scheduled for 12h00;
64.3 that the applicant was not in willful default;
64.4 that the applicant’s absence was due to its attorneys having advised
that the matter was scheduled for 12h00, which clearly demonstrates
human error and no willful default on the part of the applicant;
64.5 the applicant has a bona fide defence, which defence would have
clearly demonstrated that the third respondent had deliberately and
without just cause or reasonable grounds refused to obey a lawful
instruction to release the login details. In response, the third
19
respondent submits that she was afraid of acting unlawfully by
releasing the login details and reasoned further that she was entitled to
refuse, because she was an heir to her brother’s estate and the change
of directorship would affect her claim in the estate;
64.6 the Commissioner ought to have fully assessed the third respondent’s
duty as an employee;
64.7 that it could never have been a valid ground for the third respondent to
have refused to comply with the instruction to change the login details;
64.8 that the third respondent had persistently refused to comply with the
instruction, which was not considered by the Commissioner. That the
third respondent had acted in her own interest;
64.9 the Commissioner had failed to put proper and due weight on the
lawfulness of the instruction, and had the Commissioner afforded the
applicant an opportunity to be heard, the applicant would have been
able to demonstrate that:
64.9.1 there was a lawful instruction;
64.9.2 the third respondent had refused to obey the instruction;
64.9.3 the refusal constituted gross insubordination;
64.9.4 the finding in respect of the internal disciplinary enquiry was
correct; and
64.9.5 the third respondent’s dismissal was substantively fair.
64.10 the Commissioner had further acted unreasonably in that he had
determined that the applicant’s instruction to the third respondent was
unlawful. In so doing, the Commissioner appeared to have considered
the third respondent’s claim of being an heir in her late brother’s estate
without any evidence to confirm that the third respondent was actually
an heir;
20
64.11 furthermore, whether the third respondent was an heir to the estate
bears no relevance as to whether the instruction given to the third
respondent was lawful, as the instruction given clearly related to an
operational need which the applicant required in order to run its
operations. The evidence, even without the applicant having led any,
clearly demonstrates that the third respondent was acting in her own
best interest and not those of the applicant, contrary to her obligations
as an employee;
64.12 in respect of the Commissioner’s findings in relation to the sanction
outcome, the Commissioner failed to deal with the obvious conflict of
interest between the third respondent’s obligations as an employee and
those of being an heir . No explanation is provided by the
Commissioner as to why he considers the applicant had no merits in
respect of the matter based on his reading of the sanction outcome;
64.13 the applicant further raises issues in respect of the Commissioner’s
reinstatement of the third respondent, in that the applicant believes that
the Commissioner was obligated to consider section 193 of the LRA to
determine whether reinstatement was an appropriate remedy; and
64.14 no reasons are provided by the Commissioner as to why he believed
that no reason existed as to why the third respondent should not be
reinstated, this notwithstanding the fact that he had made reference to
the sanction, which clearly sets out the conflict of interest and the fact
that, on the third respondent’s own version, she no longer trusted her
employer. The Commissioner failed to deal with this aspect in its
entirety and accordingly misdirected himself by failing to take into
consideration the third r espondent’s own version, as recorded in the
sanction, that the trust relationship had irretrievably been broken.
Accordingly, reinstatement was not appropriate and is clearly indicative
of a decision that a reasonable decision maker could not have made
under the circumstances.
21
[65] The applicant concludes that , given these numerous reviewable irregularities,
the Commissioner’s default award and R uling ought to be reviewed and set
aside on the basis that he had acted unreasonably in his factual and legal
findings and as a result made a decision which a reasonable decision maker
would not have made under the circumstances.
[66] In opposition to the review grounds, the third respondent sets out the
shortfalls as contained in the applicant’s notice of motion, that being:
66.1 both the n otice of m otion and founding affidavit do not pray for the stay
of the implementation of the award;
66.2 no security has been filed in terms of section 145(7) and (8) of the LRA;
66.3 the review application fails to disclose any defect in the award; and
66.4 a number of the averments made are not supplemented or supported by
way of a confirmatory affidavit.
[67] In respect of the review grounds, the third respondent opposes the review
application on the following grounds:
67.1 the applicant elected not to be present at the arbitration;
67.2 the applicant could not have simply handed over the review application
to its attorneys, as the applicant would have had to depose to affidavits;
67.3 the set-down notice had been served on the applicant , and accordingly,
there is no basis for the applicant to blame her attorneys;
67.4 during the arbitration, the third respondent was required to respond to
numerous questions by the C ommissioner, during which she had
indicated the relief she sought as being reinstatement and compensation
for her lost salary;
67.5 the Commissioner correctly determined that the third respondent’s
dismissal wa s unfair and that the applicant had failed in its review
application to demonstrate any grounds of review;
22
67.6 the third respondent is being severely prejudiced as a result of the
‘frivolous’ review and condonation application, and ultimately , the
applicant has never been denied the right to be heard; and
67.7 in respect of the facts resulting in the third respondent’s dismissal, the
third respondent denies having refused to comply with the instructions
on the basis that she had escalated the instruction she had received to
the executor and ultimately complied with the instructions received from
the executor. Furthermore, at no stage had she received a direct
instruction from the applicant and was further not aware of the deadline
for the Gamagara project.
Test for review
[68] In a range of cases, starting with Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others 15 and the jurisprudence that followed 16, the test on
review, and as set out in Herholdt v Nedbank Limited17, has been defined with
great clarity:
68.1 It must be established either that the arbitrator has misconceived the
nature of the enquiry or that they arrived at an unreasonable result.
68.2 For an award to be unreasonable, the arbitrator’s conclusion must be
one that a reasonable decision- maker could not reach on the material
that was before the arbitrator.
15 (2007) 28 ILJ 2405 (CC).
16 Cusa v Tao Ying Metal Industries and others 2009 (2) SA 204 (CC); Fidelity Cash Management
Service v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC);
Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA) (Herholdt); Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v C ommission for C onciliation, Mediation and
Arbitration and others [2014] 1 BLLR 20 (LAC).
17 Herholdt supra.
23
68.3 Material errors of fact, including errors concerning the weight and
relevance to be attached to certain facts, are only of consequence if
their effect is to render the outcome unreasonable.
68.4 If the arbitrator’s reasons provide a reasonable ‘ route’ leading towards
the conclusions, it must follow that the decision is one that could have
been reached (and in fact was) by a reasonable decision- maker. A
review application would, in such circumstances, not succeed.
68.5 Even if there are flaws in the arbitrator’s reasons, a review must still
consider whether, apart from the arbitrator’s reasons, ‘the result is one
a reasonable decision maker could reach in the light of the issues and
the evidence’
18.
68.6 A review court is required to examine the merits ‘in the round’ only.
[69] It is thus obvious that reasonableness can only be assessed with regard to
the evidence before the decision-maker.
[70] It is uncontroversial that the review test is whether an arbitrator has
misconceived the nature of the enquiry or arrived at an unreasonable result.
19
A result will be considered to be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material presented to him or her.20
[71] In respect of a rescission application, section 144(d) of the LRA provides for
the rescission of an award issued in the absence of a party on good cause
shown. In Mohube v Commission for Conciliation, Mediation and Arbitration
and others 21 the court noted that there is no precise definition of the term
‘good cause’ which is required to be demonstrated in a recission application
but it is accepted that the applicant must show at least the following (a) an
absence of wilfulness; (b) that it has a reasonable explanation for the default;
(c) that the application for rescission is bona fide and not made with the
intention to delay: and (d) that it has a bona fide claim against the other
18 Ibid at para 12.
18 Ibid at para 12.
19 SA Rugby Union v Watson and Others (2019) 40 ILJ 1052 (LAC) at para 25.
20 ibid.
21 [2023] 8 BLLR 733 (LAC) at para 25.
24
party/ies. The court also stated that ‘ All these elements must be considered
and weighed and, for example, proof of a bona fide claim may make up for a
weaker explanation’.22
Analysis of the Ruling
[72] The Commissioner determined that the applicant or its legal representative
had not demonstrated that it had taken any care in checking the actual time of
the arbitration and that it was a ‘weak defence’ of the applicant to suggest that
the third respondent ought to have contacted the applicant’s legal
representative.
[73] It is clear from the reading of the recission application that this was not what
the applicant’s representative was relying upon, but rather that , given the
vigorous opposition to the third respondent ’s referral, it would have been
expected for a legal representative to have made contact with the opposition.
Whilst this is not a requirement, given the known opposition to the third
respondent’s referral, it would have been appropriate for either the applicant’s
representative alternatively , the Commissioner to have attempted to make
contact with the applicant’s representative in light of the history of the matter.
[74] The Commissioner further surprisingly makes a determination that the
CCMA’s attendance register from the s ecurity on the ground floor, ‘ showed
signs of possible tampering’ . How the Commissioner came to this conclusion
is not substantiated and further demonstrates the Commissioner’s failure to
properly consider the rescission application in its totality and in line with the
requirements of section 144 of the LRA.
[75] In respect of the merits, the Commissioner makes reference to the
chairperson’s outcome report of the disciplinary enquiry and, once again
without any substantiation or any evidence being led, determines that the
chairman misdirected himself on the questions of law before him, that he
disagreed with the chairperson in respect of the merits and as such, the
applicant’s merits are ‘weak’.
22 Ibid at para 25.
25
[76] Having considered the R uling, it is clear that the Commissioner provided no
reasons for his conclusions.
[77] I am therefore in agreement with the applicant that the Commissioner simply
provided conclusions without any basis, justification or rationale for the
conclusions reached. In short, the Commissioner clearly failed in his primary
task to properly assess the application.
[78] In my view, the finding s by the Commissioner in respect of the R uling are not
reasonable and, as such, the Ruling must be set aside. The Commissioner’s
irregularities are such that they result in a misconceived decision which no
reasonable decision maker could reach on the material that was before him.
[79] In light of the fact that the review application in respect of the R uling
succeeds, there is no need for this court to make a determination as to the
default award, which, as aforementioned and as a consequence, would
automatically fall away.
Costs
[80] Insofar as costs are concerned, this Court has a broad discretion in terms of
section 162 of the LRA to make orders for costs according to the
requirements of the law and fairness.
[81] In Zungu v Premier of the Province of KwaZulu- Natal and Others 23, the
Constitutional Court confirmed that the rule that costs follow the result does
not apply in labour matters. The Court should seek to strike a fair balance
between unduly discouraging parties from approaching the Labour Court to
have their disputes dealt with and, on the other hand, allowing those parties to
bring to this Court (or oppose) cases that should not have been brought to
Court (or opposed) in the first place.
[82] This Court is required to strike a balance between the requirements of law
and fairness. In my view, an appropriate costs order must be issued in respect
of the two Rule 11 applications. This is particularly so given that the applicant
23 (2018) 39 ILJ 523 (CC) at para 24
26
was legally represented at all times and nevertheless filed two Rule 11
applications, which were unnecessary for the pursuit of the review application.
As a result, the third respondent was compelled to incur avoidable costs in
opposing them.
[83] Although this Court has found that a basis exists for the review of the R uling
and therefore the Default Award, the applicant unnecessarily burdened the
Court with two additional applications, thereby forcing the third respondent to
oppose them. Fairness dictates that the third respondent should not be
required to bear the costs arising from these applications. It is accordingly in
the interests of justice that the third respondent be awarded costs in respect
of the two Rule 11 applications.
[84] In the premises, I make the following order:
Order
1. Condonation for the late filing of the review application is
granted;
2. The Ruling under case number GATW 2074/21 is reviewed and
set aside, and is replaced with a Ruling in the following terms:
‘The rescission application by Thenga Holdings (Pty) Ltd is
successful.’
3. The default award under case number GATW 2074/21 is
reviewed and set aside in its entirety.
4. The matter is remitted to the CCMA for arbitration de novo by a
commissioner other than the first respondent.
5. The two Rule 11 applications are dismissed with costs.
6. There is no order as to costs in respect of the review application.
______________________
27
H Schensema
Acting Judge of the Labour Court of South Africa
28
Appearances:
For the Applicant: Advocate Sarajulie Swartz
Instructed by: Victor Mkhwashu Attorneys Inc.
For the Third Respondent: Advocate Mmaphuti Ngoetjana
Instructed by: Mulima Denga Attorneys.