THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR148/24
In the matter between:
BONGANI NGUBENI Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER N S NGWANE N.O. Second Respondent
PASSENGER RAIL AGENCY OF SOUTH AFRICA Third Respondent
Heard: 19 August 2025
Delivered: 06 November 2025
Summary: Opposed review application challenging a rescission ruling. The
Applicant failed to satisfy the second requir ement of the test for
rescission, namely, demonstrating good prospects of success. The
commissioner exercised his discretion reasonably. The Applicant failed to
establish that the ruling was unreasonable. Review dismissed with no
2
order as to costs.
JUDGMENT
COOK, AJ
Introduction
[1] This matter concerns an opposed application to review and set aside the
rescission ruling issued by the Second Respondent ( the commissioner )
under case number GAJB21797- 23 under the auspices of the First
Respondent, the Commission for Conciliation, Mediation and Arbitration
(the CCMA).
[2] The Third Respondent , Passenger Rail Agency of South Africa (PRASA)
seeks that the review application be dismissed with costs.
Background
[3] SATAWU, on the Applicant's behalf , referred an unfair dismissal dispute
to the CCMA on 22 September 2023. The matter was not resolved
through conciliation and was set down for arbitration on 8 December 2023
at 09h00.
[4] The Applicant failed to appear timeously , and Commissioner N Raffee
issued a dismissal ruling on 8 December 2023.1
[5] SATAWU, on behalf of the Applicant , launched an application for
rescission of the dismissal ruling on 8 December 2023. In terms of the
written statement in support of rescission, it was recorded:
1 Page 29 of the CCMA record.
3
“On our way to the CCMA we had a tyre burst that led to a delay towards
the CCMA for our case scheduled for 09:00 a.m. and would like to be
given an alternative date to represent the member in arbitration as
applied.”2
[6] PRASA opposed the rescission application and filed an answering
affidavit and made the following submissions:
“9. Based on the Applicant’s version, firstly the Applicant during the
internal hearing and conciliation, he was represented by the
reputable labour union and well conversant representative.
10. Secondly, the Applicant or representative should have phoned the
line manager or the employee relations manager to inform CCMA
that they are having challenges.”3
The rescission ruling
[7] The rescission application was determined on the papers. The
commissioner issued a rescission ruling on 22 December 2023.4
[8] In the rescission ruling, the commissioner recorded that, regarding the
explanation for the non-appearance, the employee representative and the
employee were on their way to the CCMA, but a tyre burst caused a
delay. Further, the commissioner recorded PRASA's opposition on the
basis that the representative failed to inform anyone that they were
experiencing challenges on the day on their way to the CCMA
5.
[9] Regarding the prospects of success, the commissioner noted that the
representatives did not make submissions on them6.
2 Page 31 of the CCMA record.
3 Page 36 of the CCMA bundle.
4 Page 39 of the CCMA bundle.
5 Paragraphs 7 and 8 of the rescission ruling.
6 paragraph 8 of the rescission ruling.
4
[10] In the ruling, the commissioner referred to Shoprite Checkers (Pty) Ltd v
CCMA and Others7 (Shoprite), stating that:
“The court held that the test of good cause in the application for
rescission was the consideration of two factors, namely the explanation
for the default and whether the applicant (employee) has a prima facie
defence. A commissioner in considering the prospects of success does
not have to pronounce on the merits of the case. All that the
commissioner needs to do is to investigate whether on the averments
made by the party that filed the application, there is a chance of
succeeding when the main case is heard.”
8
[11] The commissioner found:
“11. It was the employee’s representative’s submission that he and the
employee had a tyre burst on their way to the CCMA on the day
of the proceedings, it was however the employer’s opposing
submissions that the employee and/or his representative failed to
notify either the CCMA or the employee’s relations manager of
their non-appearance at the CCMA on the day. There was nothing
submitted in support of their allegation. The representative failed
to make submissions on the prospects of success. The
application was in essence bare. I therefore find that the
employee was in wilful default of the CCMA and that he failed to
show a prima facie case against the employer. The ruling was not
erroneously made in the absence of the employer and no good
cause was shown to grant rescission, accordingly, rescission is
not granted.”
[12] The commissioner did not grant the rescission and dismissed the
application against the employer.
The review
7 [2007] 10 BLLR 917 (LAC).
8 paragraph 10 of the rescission ruling.
5
[13] In the founding affidavit, the Applicant states:
“The circumstances surrounding my absence were attributable to a burst
tyre encountered on my way to the CCMA. Unfortunately, the crucial
detail was not considered prior to the dismissal of the arbitration. I
reached the CCMA at 9:32 a.m., slightly later than the scheduled 9 a.m.
start, falling within the customary grace period. Upon reaching the
Second Respondent, we were informed that the Third Respondent had
been released due to our delayed arrival. To clarify our delay, my union
representative and I presented photographic evidence to the CCMA. A
copy of the photograph is hereto attached and marked Annexure “B”.”
9
[14] The Applicant further states:
“It is submitted that my prospects have not altered since the initial referral
of my matter, and thus the reasons were not enunciated in the rescission
application.”10
[15] The Applicant then avers:
“The Second Respondent only addressed one facet for the good cause
test, neglecting to evaluate or make any decision regarding the
Applicant’s prospects of success in the main dispute. The failure to
assess the Applicant’s overall prospects in the main dispute raises
concerns about comprehensiveness and the fairness of the evaluation
process.”
11
[16] The deponent reiterates that his intention was never to default wilfully.12 In
its answering affidavit, PRASA submitted that:
“Neither the CCMA nor the above Honourable Court have been made
aware of the circumstance surrounding the dismissal of the Applicant.
This was one of the main reasons why the rescission application of the
9 Paragraph 14, founding affidavit, page 6 of the indexed pleadings.
10 Paragraph 16, page 6 of the indexed pleadings.
11 Paragraph 17 of the founding affidavit, page 7 of the indexed pleadings.
12 Paragraph 19, founding affidavit, page 7 of the indexed pleadings.
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Applicant failed, as he failed to bring to the CCMA’s confidence the
prospects of success of his referral to the CCMA, this was a fatal flaw of
the rescission application.”13
[17] PRASA further submits:
“The Applicant’s rescission application was not merely dismissed based
on the Applicant not notifying the parties of his delay. It was this together
with the fact that the rescission application fails to address the issue of
prospects of success, which is required to be discussed in a rescission
application.”
14
Relevant law
[18] Section 138(5)(a) of the Labour Relations Act15 (LRA) reads:
“(5) If a party to the dispute fails to appear in person or to be represented
at the arbitration proceedings, and that party-
(a) had referred the dispute to the Commission, the commissioner
may dismiss the matter;”
(b)
[19] Section 144 of the LRA reads:
“Any commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose, may on
that commissioner's own accord or, on the application of any affected
party, vary or rescind an arbitration award or ruling-
(a) erroneously sought or erroneously made in the absence of any
party affected by that award;
13 Paragraph 13, answering affidavit, page 26 of the indexed pleadings.
14 Paragraph 18, page 27 of the indexed pleadings.
15 Act 66 of 1995.
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(b) in which there is an ambiguity, or an obvious error or omission,
but only to the extent of that ambiguity, error or omission;
(c) granted as a result of a mistake common to the parties to the
proceedings; or
(d) made in the absence of any party, on good cause shown.”
[20] In Shoprite16, the Labour Appeal Court held:
“[35] The test for good cause in an application for rescission normally
involves the consideration of at least two factors. Firstly, the
explanation for the default and secondly whether the applicant
has a prima facie defence. In Northern Province Local
Government Association v CCMA and Other [2001] 5 BLLR
539 (LC) at 545 at para 16 it was stated:
“An application for the rescission of a default judgment must show
good cause and prove that he at no time denounced his defence,
and that he has a serious intention of proceeding with the case. In
order to show good cause an applicant must give a reasonable
explanation for his default, his explanation must be made bona
fide and he must show that he has a bone fide defence to the
plaintiff’s claims.”
[36] In MM Steel Construction CC v Steel Engineering and Allied Workers
Union of SA and Others17, Nugent J had this to say:-
“These two essential elements ought nevertheless not to be assessed
mechanistically and in isolation. While the absence of one of them would
usually be fatal, where they are present they are to be weighed together
with relevant factors in determining whether it should be fair and just to
grant the indulgence.”
16 (Id fn 7) at para 35.
17 (1994) 15 ILJ 1310 (LAC) at 1311 I – 132a.
8
[21] The Constitutional Court in Zuma v Secretary of the Judicial Commission
of Inquiry into Allegations of State Capture, Corruption and Fraud in the
Public Sector Including Organs of State and Others
18, defined good
cause:
“[71] As an alternative to rule 42, Mr Zuma pleads rescission on the
basis of the common law, in terms of which an applicant is
required to prove that there is “sufficient” or “good cause” to
warrant rescission. “Good cause” depends on whether the
common law requirements for rescission are met, which
requirements were espoused by the erstwhile Appellate Division
in Chetty, and affirmed in numerous subsequent cases, including
by this Court, in Fick. In that matter, this Court expressed the
common law requirements thus—
‘the requirements for rescission of a default judgment are twofold.
First, the applicant must furnish a reasonable and satisfactory
explanation for its default. Second, it must show that on the merits
it has a bona fide defence which prima facie carries some
prospect of success. Proof of these requirements is taken as
showing that there is sufficient cause for an order to be rescinded.
A failure to meet one of them may result in refusal of the request
to rescind.”
Thus, the existing common law test is simple: both requirements
must be met. Mr Zuma must establish that he had a reasonable
and satisfactory explanation for his failure to oppose these
proceedings, and that he has a bona fide case that carries some
prospects of success.”
and
“[73] Secondly, even if Mr Zuma was at the helm of a meritorious
application bearing some prospects, which he had managed to
18 2021 (11) BCLR 1263 (CC) at para 71.
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steer clear of the perilous dangers of the doctrine of functus
officio, one cannot ignore the simple common law rule that both
the requirements must be met:
“for obvious reasons a party showing no prospect of success on
the merits will fail in an application for rescission of a default
judgment against him, no matter how reasonable and convincing
the explanation of his default. And ordered judicial process would
be negated if, on the other hand, a party who could offer no
explanation of his default other than his disdain of the Rules was
nevertheless permitted to have a judgment against him rescinded
on the ground that he had reasonable prospects of success on
the merits.”
[22] In Production Institute of South Africa ( Pty) Ltd v CCMA and others19, the
Court held:
“The discretion that a commissioner exercises in considering a rescission
application is very wide and is the same as that of judicial officers in civil
cases. See Martin v Commission of Conciliation Mediation and Arbitration
(2008) 29 ILJ 2254 (LC). However, in exercising the power to either grant
or refuse the rescission application, the commissioner has to make sure
that in doing so he or she applies his or her mind to the factors relevant
to such a determination. Failure to consider or apply one’s mind to any of
the relevant factors by the commissioner in his or her consideration of the
rescission application could make such a decision unreasonable or
defective as envisage in s145 of the LRA. As stated in Martin’s case, the
Labour Appeal Court upheld the appeal largely because the
commissioner in that case had taken into account only one aspect of the
applicable test.”
And
“… What an applicant needs to do is to provide a basis that shows that
19 (2011) 32 ILJ 1712 (LC) at para 6.
10
he or she has a good chance of succeeding when the matter is
considered on its merits. It is however not good enough for the applicant
to make a broad and sweeping statement that he or she has good
prospects of success. An averment that there are prospects of success
or bona fide defence must be substantiated and backed by facts”.
Analysis
[23] The Applicant, despite being represented by a trade union, wholly failed to
address the issue of prospects of success in the rescission application.
[24] Similarly, the Applicant, now legally represented, has also failed to
adequately address the prospects of success in the present review
application.
[25] The only possible reference could be gleaned from the 7.11 referral form
and not in the rescission application:
25.1 “Summarise the facts of the dispute: “The employee was dismissed
against the employer’s policy.”
20
25.2 For procedural fairness: “Appeal rejected”
25.3 And for substantive issues: “No reason for dismissal.”
[26] Consequently, even if the Applicant could rely on these broad and
sweeping statements (which were not made in the rescission application) ,
they would not have been sufficient as they were not substantiated and
backed by any supporting facts.
[27] In the circumstances, there was no evidence before the commissioner,
and there is likewise nothing before this Court, upon which to assess the
Applicant's prospects of success.
20 Page 6 of the CCMA record
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[28] Accordingly, the Applicant failed to satisfy the second essential
requirement of the test for rescission. As the authorities make clear, an
applicant must satisfy both requirements. The Applicant failed to do so. As
a result, the Applicant failed to establish good cause to rescind the
dismissal ruling.
[29] Although the Court is sympathetic to the Applicant's explanation for his
default, this is a review application. The Court is not at liberty to interfere
with the ruling based on what the Court may or may not have ruled in the
circumstances.
[30] The review test is a stringent and conservative test of reasonableness .
The Court can only interfere with the ruling if the result is untenable.
21 The
commissioner did not misconceive the nature of the enquiry , nor did he
arrive at an unreasonable result. 22 The Commissioner exercised his
discretion reasonably.
[31] At best, the Applicant provided a reasonable explanation for his default .
However, he failed entirely to meet the second, distinct requirement of
establishing a prima facie case on the merits.
[32] In conclusion, the commissioner's decision in the rescission ruling is not
one a reasonable decision- maker could not have reached under the
circumstances.
23
Costs
[33] The Court has a wide discretion to order costs.
[34] In labour matters , costs do not necessarily follow the result. An order of
costs is determined by considering whether it would be fair to award such
21 Makuleni v Standard Bank of South Africa Ltd and others (2023) 44 ILJ 1005 (LAC).
22 Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA).
23 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 12 BLLR 1097 (CC).
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costs in accordance with law and fairness.
[35] Although the review application was ill -conceived and lacked merit, the
Applicant has already been denied an opportunity to ventilate his
dispute. In these circumstances, fairness dictates that he should not be
further burdened with a costs order.
[36] In the premises, the Court makes the following order:
Order
1. The review application is dismissed.
2. There is no order as to costs.
__________________
A.L. Cook
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : S Naidoo of Sudeshnee Naidoo Attorneys
For the Respondent : C Crafford of Crafford Attorneys