THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR626/24
In the matter between:
JUSTICE FLOYD CHILOANE Applicant
and
SAKHILE KHULEKANI GUMEDE N.O First Respondent
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION Second Respondent
GLENCORE OPERATIONS SA (PTY) LTD Third Respondent
Heard: 12 August 2025
Delivered: 11 November 2025
Summary: An application to review and set aside a ruling refusing to re- enrol
a matter previously withdrawn. Matter to be re- enrolled as it was
not settled.
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JUDGMENT
___________________________________________________________________
GANDIDZE, J
2
Introduction
[1] The application by Mr Chiloane, in terms of section 145 or 158(1)(g) of the
Labour Relations Act 1 (LRA), is aimed at reviewing and setting aside a ‘Re-
enrolment Ruling’ (the Ruling) issued by the commissioner in case number
GAJB18629-223, under the auspices of the Commission for Conciliation ,
Mediation, and Arbitration (CCMA) . The ruling of 12 March 2024 refused to
grant Chiloane's application to re -enrol a dismissal dispute against Glencore
Operations Pty Ltd (Glencore), which Chiloane had withdrawn on 7 February
2024. Chiloane seeks an order directing the CCMA to re-enrol the dispute for
arbitration, or, alternatively , remitting the matter to a different commissioner
for determination.
[2] Glencore opposed the application.
Condonation for the late filing of the answering affidavit
[3] Glencore applied for condonation for filing its answering affidavit late.
[4] The Notice in terms of the then- applicable Rule 7A(8) 2 was served on
Glencore’s attorneys on 8 May 2024, and the answering affidavit was filed on
10 June 2024. According to my calculations, that is 23 days late, but the
parties submitted that it was either eight or ten days late.
[5] Be that as it may, I understand t he explanation for the delay provided in the
answering affidavit to be as follows . A Notice of Objection in terms of clause
11.4.2 of the now since repealed Practice Manual of the Labour Court 3 was
served on Glencore’s attorneys on 24 May 2024, before any answering
affidavit had been filed. Upon receipt of the Notice of Objection, Glencore’s
attorneys4 are said to have forwarded it to Glencore’s current attorneys of
record,5 and there was miscommunication between Glencore’s attorneys and
their current attorneys of record regarding whether an answering affidavit had
1 Act 66 of 1995, as amended.
2 GN 1665 of 1996: Rules for the Conduct of Proceedings of the Labour Court (repealed effective 17
July 2024).
July 2024).
3 Practice Manual of the Labour Court of South Africa, 2013 (repealed, effective 17 July 2024).
4 Elize Alberts and David Woodhouse.
5 Pinsent Mansons.
3
already been drafted and filed. It appears the confusion arose from the Notice
of Objection being filed when no answering affidavit had been filed. After
engagements, Glencore's current attorneys of record prepared an answering
affidavit, which was filed on 10 June 2024.
[6] The 23-day delay is almost twice the time prescribed for filing an answering
affidavit. H owever, a Notice of Objection was filed before an answering
affidavit was filed. If condonation is necessary , it is in the interests of justice
6
to grant it so the application is determined having regard to the submissions of
both parties. Condonation is granted.
Background information
[7] Chiloane was employed by Glencore as a fleet management system
superintendent. He was dismissed on 30 June 2023 for absenteeism and/or
abscondment. Chiloane claims that he was granted permission to be absent
by Mr Havenga, that the employer knew his whereabouts , and that during his
absence, his wife contacted Glencore to inform them of his whereabouts.
Following his dismissal, he referred an alleged unfair dismissal dispute to the
CCMA on 18 August 2023. The dispute was unsuccessfully conciliated on 3
October 2023.
[8] Subsequently, the matter was s cheduled for arbitration on 7 February 2024.
On that day, Chiloane was represented by a Candidate Attorney from Nkosi
Moloi Attorneys ,
7 appointed by Standard Bank Legal Protection Cover , of
which Chiloane is a policyholder . What transpired on the day is captured in
two documents.
[9] First is the ‘Outcome report’ signed by the commissioner, which notes that the
dispute has been conciliated, the applicant ‘ abandoned pursuit of the matter ’,
and the case was ‘ withdrawn’. The second document is a ‘ Notice of
Withdrawal’, recording that Chiloane hereby withdraws his application to the
CCMA against Glencore. The reason for withdrawal is cited as ‘ Other - The
6 See: Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) at para 20.
6 See: Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) at para 20.
7 This is evident from Chiloane’s affidavit in support of the re- enrolment application, although not
specifically pleaded in Chiloane’s affidavits in the review application.
4
employer has undertaken to give the applicant a neutral reference’. The form
also states that ‘ I confirm that I signed this Notice of Withdrawal of my own
free will. I understand that there will be no further process in this matter and
that I am not able to re- refer or re -open this case’ . Chiloane, the
commissioner, and another commissioner signed this form.
[10] Almost a month later, now r epresented by Mashifane Moswane Attorneys, his
current attorneys of record, on 5 March 2024, Chiloane filed a ‘ Request for re-
enrollment’ of the same dispute withdrawn on 7 February 2024.
[11] The application was supported by a founding affidavit from Chiloane, in which
he stated that he withdrew the dispute following advice from his then legal
representative. This legal representative told him he had no chance of
succeeding at the CCMA and advised him to pursue a contractual claim in the
High Court instead. Chiloane also claimed that the same legal representative
said she would not act for him if he continued with the claim. He explained
that the legal representative did not follow his instructions, was professionally
negligent in advising him to withdraw the dispute at the CCMA, and that he
had reported her to the Legal Practice Council and to Standard Bank Legal
Protection Cover. He admitted he was not forced into signing the withdrawal
form but alleged that the commissioner failed to explain the implications and
consequences of withdrawing the dispute. He expressed his desire to pursue
his claim at the CCMA.
[12] Glencore did not oppose the application.
[13] The same commissioner who handled the matter on 5 March 2024 decided
the re-enrolment application and found that:
13.1 She could not comment on the advice Chiloane received from his legal
representatives, but the wrong legal advice given is not a valid reason
to re -enrol the matter, and Chiloane must bear the implications of
following the advice of a legal representative of his choice.
following the advice of a legal representative of his choice.
13.2 Chiloane withdrew the dispute after Glencore agreed to provide him
with a neutral reference, not so that the matter could be referred to the
5
High Court. Therefore, Chiloane did not provide a valid reason for the
re-enrolment.
13.3 Chiloane signed the withdrawal form after the commissioner explained
the implications, and Chiloane understood the implications.
13.4 Chiloane intended to withdraw the matter because he was present and
signed the withdrawal form.
13.5 To re- enrol the dispute would be to condone the mischief whereby a
party withdraws disputes for whatever reason and later seeks to re -
enrol the same dispute, negating the principle of finality.
13.6 It was not in the interests of justice to re-enrol the matter.
[14] Case management was directed to close the file.
Grounds of review
[15] Firstly, it is submitted that the commissioner failed to adequately apply her
mind to the facts and circumstances of the case.
[16] Secondly, by deciding the matter on the papers and not calling for an oral
hearing, the commissioner is said to have deprived Chiloane of the right to a
fair hearing.
[17] Third, the commissioner incorrectly concluded that the CCMA lacked
jurisdiction to re-enrol the matter which had been withdrawn, in circumstances
where a withdrawal is akin to an order of absolution from the instance, which
does not prevent re-enrolment of the dispute.
Analysis of the grounds of review
6
Failure to apply mind to the facts
[18] The submission was that, in refusing the re- enrolment application, the
commissioner ignored section 191(5) of the LRA, which states that the CCMA
must arbitrate a dispute at the request of the employee party if it has been
referred to conciliation and 30 days have passed, or a certificate (of non-
resolution) has been issued. The submission further was that, based on the
facts of this case, both requirements were met and, therefore, the CCMA was
obliged to arbitrate the dispute.
[19] The submission overlooks that the matter was scheduled for arbitration on 7
February 2024, when Chiloane withdrew the case. The real issue is whether a
case that was set down for arbitration and then withdrawn on the same date
can be re-enrolled. This is the third ground of review discussed below.
The right to an oral hearing
[20] It is undisputed that the re- enrolment application was decided on the papers,
without an oral hearing.
[21] Chiloane submitted that the commissioner committed a gross irregularity by
considering the application solely based on the papers, without inviting the
parties to make oral submissions or providing them with notice. He further
submitted that there is no CCMA R ule explicitly allowing the disposal of
applications on paper, and that the correct interpretation of the Rule is that the
parties' agreement was necessary for the matter to be decided in this way. As
I understand it, the additional submission was that, in the absence of an
answering affidavit and ‘ faced with a dispute of facts on the papers ’, the
commissioner should have directed that the matter be set down for oral
argument.
[22] Glencore relies on the Rules for the Conduct of Proceedings before the
Commission for Conciliation , Mediation and Arbitration
8 (CCMA Rules) for its
submission that a commissioner exercises discretion whether to hear an
8 Government Gazette No R3318, 21 April 2023.
7
application on the papers or to call for an oral hearing, and that the agreement
of the parties need not be obtained.
[23] First, Rule 31(8) provides that applications may be set down for a hearing or
determined on the papers. Then Rule 31(10) provides that, despite Rule 31
(dealing with applications), a commissioner may determine an application in
any manner he/she deems fit, provided that the commissioner informs the
parties of how the process will be conducted and gives the parties an
opportunity to be heard. Finally, Rule 31C(3) states that a commissioner may
decide the application to re- enrol a dispute based on the submissions
received from the parties.
[24] Glencore also refer s to the decisions of this Court in TGWU v National
Bargaining Council for the Road Freight Industry & Another9, and Mpheroane
v Makhubela NO and Others 10, which established that there is no automatic
right to an oral hearing when the CCMA considers applications.
[25] Rule 31C(3) concerns applications to reinstate a matter removed from the roll,
which is a different issue from the matter that was before the commissioner.
Therefore, the rule did not apply to the matter.
[26] Rule 31(8) clearly grants a commissioner the discretion to decide whether to
resolve an application on the papers. Nothing more is required from the
commissioner.
[27] However, CCMA Rule 31(10), while granting a commissioner the discretion to
decide whether to determine an application on the papers or to hear oral
submissions, includes the proviso that the parties must be informed of how
the process will be conducted and be given an opportunity to be heard. It
appears that, once the commissioner has exercised their discretion to decide
the matter on the papers or to hear oral submissions, under this R ule, the
parties should be informed of the process to be followed. It does not appear
9 [2002] 9 BLLR 906 (LC) at para 11.
10 (JR 1997/2020) [2023] ZALCJHB (11 August 2023) at paras 32-37.
8
that the parties were notified that the application would be decided on the
papers.
[28] On my reading of CCMA Rule 31, Chiloane had no right to make oral
submissions but was entitled to be notified that the matter would be decided
on the papers. However, the failure to inform him that the application would be
decided on the papers did not prejudice him, considering that only his affidavit
was before the commissioner, as Glencore did not file opposing papers.
[29] In any case, section 138 of the LRA requires a commissioner to resolve a
dispute fairly and quickly , with minimal legal formalities, and, where there is
any conflict between the LRA and the CCMA Rules, the LRA takes
precedence.
[30] Chiloane’s argument that the commissioner needed to obtain the parties'
agreement before making a decision based on the papers was not supported
by reference to the CCMA rule relied upon.
11
[31] Only Chiloane’s affidavit was before the commissioner ; therefore, there were
no ‘disputes of fact on the papers ’ justifying oral submissions, as argued on
behalf of Chiloane.
[32] If Chiloane believed that oral argument was essential, he could have stated
this in his affidavit or sent relevant correspondence to the CCMA. He did not
do either.
[33] There is no merit in this ground of review, which Chiloane contends is his
main complaint against the ruling.
A withdrawn matter can be re-enrolled
[34] For the contention that a matter which had been withdrawn can be re -
enrolled, r eliance was placed on the case authorities of Ncaphayi v
11 The heads of argument submitted on behalf of Chiloane refer to Rule 24 of the CCMA Guidelines
on Misconduct Arbitrations, which deals with preliminary points in arbitration proceedings. It is unclear
what relevance that Rule had to the application for re-enrolment.
9
Commission for Conciliation, Mediation & Arbitration and Others12 (Ncaphayi),
Shibogde v Minister of Safety and Security and Others (Shibogde),13
Kgobokoe v Commission for Conciliation, Mediation and Arbitration and
Others14, and SA Municipal Workers Union and Others v Commission for
Conciliation, Mediation and Arbitration and Others & Another15 (SAMWU).
[35] In their heads of argument , both parties submitted that the commissioner
found that the CCMA lacked jurisdiction to arbitrate the matter. However ,
during oral argument, Mr Allsop pointed out that the commissioner did not
make such a finding. He submitted that the commissioner had exercised a
discretion not to re- enrol the matter, and that the scope to interfere with such
discretionary exercise was limited to cases where a commissioner commits a
misdirection or irregularity, o r acted capriciously, or upon the wrong principle,
or in bad faith or unfairly, or where, in exercising the discretion, the
commissioner reached a decision that a reasonable decision maker could not
reach. The submission further was that i f the commissioner exercised such
discretion judiciously and fairly, after taking into consideration all relevant
facts, this court will not interfere with it. Reliance was placed on the decision
of Cowley v Anglo Platinum and Others
16.
[36] Glencore’s further submission was that the CCMA could not re- enrol the
matter because there was no live dispute between the parties since the matter
had been settled; therefore, the CCMA lacked jurisdiction to arbitrate it . For
that submission, reliance was placed on the decision of this Court in Robor
Tube (Pty) Ltd v M etal & Engineering Industries Bargaining Council &
Others
17 (Robor Tube).
[37] Mr Allsop was correct in his submission that the commissioner did not find
that the CCMA lacked jurisdiction to determine the matter. However, I accept
12 (2011) 32 ILJ 402 (LC).
13 (JR 3307/09) [2012] ZALCJHB 64 (11 July 2012).
14 (2012) 33 ILJ 235 (LC).
13 (JR 3307/09) [2012] ZALCJHB 64 (11 July 2012).
14 (2012) 33 ILJ 235 (LC).
15 (2014) 35 ILJ 2011 (LC).
16 [2016] JOL 35884 (LC) at para 21.
17 (2018) 39 ILJ 2332 (LC).
10
that some court decisions have regarded a refusal to re- enrol a matter as a
jurisdictional finding.18
[38] Mr Allsop also correctly submitted that the commissioner exercised a
discretion not to re- enrol the matter, and that the applicable review test is
whether the commissioner exercised his discretion judiciously and whether
the decision is one that no reasonable decision-maker could reach.
[39] From the cases cited by the parties referenced above, the general principle is
that a case withdrawn before the merits are decided may be re- enrolled. It
does not matter that the withdrawal was based on legal advice. 19 Nor does it
matter that an employee signed an undertaking affirming that the withdrawal
was of their own free will, that such employee understood there would be no
further process in the matter, and that such employee would not be able to re-
refer or re -open the case. The same applies to the commissioner's
explanation to Chiloane about the consequences of withdrawing a dispute.
None of these factors prevents an employee from seeking the re-enrolment of
a withdrawn matter . This legal position makes it unnecessary to consider Mr
Serogole’s submission that, in deciding the application, the commissioner
failed to have regard to social justice.
[40] It was also unnecessary for Chiloane to apply to set aside the Notice of
Withdrawal, as submitted by Glencore. That issue was explicitly addressed by
the Court in Ncapayi,
20 which found that when a matter is withdrawn, it is a
unilateral decision by the employee, and not a decision by the commissioner ,
which can be set aside on review.
[41] However, when a matter is withdrawn because it has been settled, it is well
established that the dispute has been resolved and cannot be reinitiated
unless the settlement agreement is set aside. Therefore, the question to be
determined is whether Chiloane settled his dispute with Glencore.
18 Ncapayi supra. In SA Municipal Workers Union and Others v Commission for Conciliation ,
18 Ncapayi supra. In SA Municipal Workers Union and Others v Commission for Conciliation ,
Mediation and Arbitration and Another (2014) 35 ILJ 2011 (LC), the commissioner had made a finding
that the CCMA lacked jurisdiction to determine a withdrawn dispute.
19 See: Robor Tube.
20 Ncapayi ibid at para 26.
11
[42] The commissioner did not explicitly find that the matter was settled, but noted
that it was withdrawn in response to Glencore’s proposal to give Chiloane a
neutral reference. However, was the matter truly settled?
[43] Above, I have referred to the documents signed by Chiloane. The Notice of
Withdrawal records the reason for dismissal as ‘ Other- the employer has
undertaken to give the applicant a neutral reference’. The same form provided
the option to select the reason for the withdrawal as ‘I have settled with my
former employer’. That box could have been ticked, but was not.
[44] No transcript was presented to the Court concerning the proceedings of 7
February 2024. Such a transcript could have clarified the discussions
regarding Glencore’s proposal to provide Chiloane with a neutral reference.
[45] Despite the absence of the transcript, I am of the view that the matter was not
settled. The neutral reference provided to Chiloane was not before the Court.
A neutral reference can be no different to a certificate of service , which
Chiloane was entitled to in terms of the Basic Conditions of Employment
Act.
21 Therefore, Chiloane did not compromise his claim in exchange for a
neutral reference.
[46] The commissioner expressed concern that re- enrolling the dispute could
encourage parties to withdraw disputes for arbitrary reasons and then seek to
re-enrol the same matter later.
[47] If a matter is withdrawn but not settled, it can be re- enrolled. An employee
who seeks to re- enrol a matter must be directed to file a fresh referral, and if
the referral is made late, to apply for condonation. Whether the dispute will be
arbitrated on its merits depends on whether condonation is granted. This is
the approach to be followed in terms of the decisions of Shibogde
22 and
SAMWU.23
21 Act 75 of 1997.
22 Shibogde at para 23.
23 SAMWU at para 15.
12
[48] In this instance, the CCMA did not approach the matter in that manner but
instead determined whether a withdrawn dispute could be re- enrolled. It is
well established that a withdrawal notice can be withdrawn. Therefore, in
exercising her discretion whether or not to grant the re-enrolment application,
the commissioner committed a misdirection or an irregularity and relied on the
wrong principle that a matter that is voluntarily withdrawn cannot be
reinstated. In National Union of Metalworkers of SA v Assign Services &
Others,
24 the Labour Appeal Court stated that a material error of law will lead
to both an incorrect and unreasonable award.
[49] This ground of review succeeds , and the ruling falls to be reviewed and set
aside.
Costs
[50] In accordance with the requirements of law and fairness, each party shall bear
its own costs.
[51] In the premise, the following order is made:
Order
1. The re- enrolment ruling issued by the Commission for Conciliation,
Mediation, and Arbitration in case number GAJB18629/23 dated 12
March 2024 is reviewed and set aside.
2. The Commission for Conciliation, Mediation, and Arbitration is ordered
to enrol the matter for arbitration before a commissioner other than
Commissioner Sakhile Khulekani Gumede.
3. There is no order as to costs.
_______________________
T Gandidze
Judge of the Labour Court of South Africa
24 (2017) 38 ILJ 1978 (LAC) at para 32.
13
14
Appearances
For the Applicant: Advocate Phokgedi Serogole
Instructed by: Mashifanemoswane Attorneys
For the Respondent: Mr Allsop of Pinset Masons South Africa Inc