THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA21/25
In the matter between:
MOBILE TELEPHONE NETWORKS
(PROPRIETARY) LIMITED Appellant
and
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
XOLANI NYAMEZELE N.O. Second Respondent
HERBERT SEETISO MONADIRA Third Respondent
Heard: 18 November 2025
Delivered: 24 November 2025
Coram: Van Niekerk JA, Nkutha-Nkontwana J, et Waglay AJA
JUDGMENT
VAN NIEKERK, JA
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Introduction
[1] This appeal primarily concerns a refusal by the second respondent (the
commissioner) to postpone an arbitration hearing and in particular, whether th at
refusal was the result of a proper exercise of judicial discretion.
Background
[2] The third respondent (employee) was employed by the appellant on 1 September
2012 until he resigned on 28 September 2019. The employee contended that the
appellant had unilaterally c hanged his terms and conditions of employment and
that his continued employment was intolerable. The employee referred a claim of
constructive dismissal to the first respondent , the Commission for Conciliation,
Mediation and Arbitration (CCMA), a dispute that was ultimately referred to
arbitration. In September 2020, a default award was granted in favour of the
employee but later rescinded.
[3] The matter was again set down for h earing on April 2021. On that date, the
appellant’s representative, Mr. Jacques N aude, an official of an employers’
organisation, appeared at the CCMA and sought a postponement of the hearing.
He did so on the basis that the official dealing with the matter , Mr Lotter, had
been rushed to hospital after having fallen ill the previous evening . The CCMA’s
case management had been advised by the appellant of that fact earlier the
same morning, and of the fact that a medical certificate would be provided as
soon as it became available. Naude’s mandate was limited to seeking the
postponement – he had matters of his own to which he was obliged to attend on
the same morning. The commissioner stood the matter down until 12h00 to
enable the appellant’s representative and its witnesses to appear. At that time,
the commissioner continued with the proceedings on the basis that he
considered the appellant to be in wilful default and issued an award by def ault in
favour of the employee.
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[4] The commissioner deals at some length in his award with the refusal to postpone
the hearing. He states:
’18 Postponements are dealt with in term s of Rule 23 of the CCMA Rules. I
am not persuaded that this is an emergency as the Respondent seeks to
present it. The Respondent is a big establishment that can easily make
contingency plan in the event of an emergency.
19. I also take cognizance that in this reg ard the Respondent is represented
by an employers organisation. John failed to explain the reasons behind
the failure of the Respondent to attend the proceedings with its witnesses.
I reckon that a sick note was later emailed to the CCMA. I hold a view that
a sick note does not automatically qualify any party to a postponement. It
can only be used as proof of incapacity where necessary.
20. It is trite that postponement is not a right but an indulgence with the
presiding officer. In this matter the Respondent has already decided not to
be part of the proceedings even before they can asked (sic) for a
postponement. The application for a postponement was just to go through
the motions.
21. The dispute dates back to 2019 and it is in the interests of both parties
and justice that this matter must be finalized effectively by the CCMA. The
prolonged delays di d not only affect the parties but also the efficiency of
the CCMA as it is entrusted a duty to expedite and finalize disputes
effectively.
22. An inference to be drawn is that the Respondent was in wilful default of
the proceedings.
23. Therefore, postponement is declined.’
[5] In his later ruling refusing to rescind the default arbitration award, the
commissioner referred to his refusal to postpone the arbitration hearing, and said
the following:
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‘30. I have allocated quality time in this aspect in the Default Arbitration Award, I
however, feel it is important to put more emphasis on it.
31. It is also crucial for me to record that representation of a party in CCMA
proceedings does not take away responsibilities and accountabilities from
that party. The essence of this view is that although the Applicant is
represented by an employer ’s organization it has a duty to honour its
obligation to attend the CCMA process in order to defend itself. It is due to
this reason that I stood down the proceedings from 9:00 to 12:30 to allow
the Respondent to be part of the proceedings. I will deal with thi s issue in
detail very shortly.
32. The Applicant through its representative came to the CCMA proceedings
to submit a request for a postponement. The conduct of the Applicant
showed a preconceived decision of excluding itself from the proceedings.
In fact I only regarded the actions of the Applicant as a postponement
because someone indeed came to the proceedings. This is despite the
fact that he was explicit that he came to tell the proceedings about the
non-availability of the real representative. It was also clear that the
Applicant did not seek an indulgence but had a foregone conclusion that
the proceedings cannot proceed.
33. The Applicant decided upon itself not to be part of the proceedings on an
assumption that they will automatically be granted postponement. I do not
find any plausible explanation in t he application of the Applicant that
explains failure to attend the proceedings besides the non-availability of
its representative. I alluded in the Default Arbitration Award to the fact that
both the Applicant and employers organization are big institutions whom
the absence of a single person cannot mean the death of the.
34. The Applicant cannot claim ignorance of not having details about the
dispute at hand. It cannot also be genuine that out of the employees of
dispute at hand. It cannot also be genuine that out of the employees of
the Applicant none had capabilities to handle the dispute in the absence
of its representative. Then the CCMA should not be held into (sic) ransom
by the wrong choices or delaying tactics of its parties . The rationale
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behind standing down the process was to provide an opportunity for the
Applicant to come and either state its case or indulge the proceedings
that it did not have capacity in the absence of its representative from the
employer’s organization…
38. The relevance of the above precedence is that the Applicant in its
approach took it for granted that it has a right to be granted a
postponement. Secondly, it apportioned upon itself postponement before
any indulgence with the proceedings. Hence there was no attendance by
it or its witnesses. The dispute date s back to 2019 and makes it one of
the oldest files the CCMA still grapples with finalizing. This is
notwithstanding the fact that the CCMA has a statutory mandate to
expedite and effectively finalize disputes.’
[6] In short, the commissioner’s reasoning was that the dispute dated back to 2019
and that further unjustified delays would impede the resolution of the matter, that
both the appellant and the employers’ organisation of which it was a member
were large organisations with the capacity to arrange another representative to
replace Lotter, that Naude had sought to make an emergency out of none since
Lotter had been hospitali sed the previous evening (this despite Naude having
informed the commissioner that Lotter had been hospitalised the same morning),
and that the appellant’s attitude was demonstrative of an entitlement to a
postponement, given that neither a representative nor any witnesses for the
appellant were present after the proceedings had been stood down.
[7] The appellant sought to rescind the default award on the basis that Naude was
not able to represent it in circumstances where he had no knowledge of the
matter and where he had matters of his own to which he had to attend. Further,
the appellant submitted that the fact that Naude attended at the CCMA to request
a postponement was demonstrative of the fact that it had not abandoned its
a postponement was demonstrative of the fact that it had not abandoned its
defence of the employee’s claim, and that it w as not in wilful default. Further, the
appellant submitted that Lotter’s attendance would have posed a severe health
risk to himself and other attendees, given the Covid 19 pandemic that prevailed
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at the time. Finally, the appellant made submissions regarding the merits of the
claim.
[8] The commissioner refused to rescind the default award.
Labour Court
[9] On review, the Labour Court declined to intervene in the commissioner’s decision
to refuse the postponement and came to the following conclusion:
‘[39] …From the record it is apparent that the commissioner was not
persuaded that there was an emergency as submitted by the applicant.
He was of the view that in such a big establishment, contingency plans
could have been easily made... Furthermore, he was of the view that sick
note do not automatically qualify a party to a postponement. They are
only proof of incapacity where necessary. Furthermore, a postponement
is not granted as a right but an indulgence by the arbitrator. Lastly, he
found the matter was one which had long been referred to the CCMA and
that it was in the interest of both the parties that it be finalized as
expeditiously as possible. Accordingly , the commissioner found that the
applicant was in willful default and refused to grant the postponement as
sought.
[40] The factors mentioned by the commissioner as stated above are all
factors to be considered in deciding whether to grant or reject such an
application or not. I do not find that the commissioner erred in any way in
his refusal to grant the postponement and reach a decision which could
not have been reached by a commissioner in his position. I do not doubt
that the decision of the second respondent not to allow a postponement is
a reasonable decision considering the facts which were before him. The
decision that arrived at was a decision that a reasonable decision maker
could have arrived at on the facts before him. Accordingly, I conclude that
this decision does not warrant interference on the part of this court.’
Grounds of appeal
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[10] The appellant contends that the Labour Court erred in upholding the
commissioner’s refusal to postpone the arbitration proceedings because it
accepted the commissioner’s reasons that the appellant was in wilful default in
circumstances where the appellant’s representative had fallen ill the night before
the hearing. Further, the appellant contends that the Court erred by failing to
recognise that the commissioner relied on incorrect facts , in that given the
circumstances, it was improbable or impossible for the appellant to make
contingency plans to participate in the arbitration hearing
.
Evaluation
[11] In National Police Services Union and Others v Minister of Safety and Security
and Others 1 the Constitutional Court affirmed that parties to a dispute do not
have a right to a postponement, and that the court retains a discretion on
whether or not to grant a postponement. That discretion is to be exercised by
reference to whether the applicant shows good cause for the postponement to be
granted, whether it is in the interests of justice that the postponement be granted,
and a consideration of all relevant factors. The requirement for good cause
entails the furnishing of a full and satisfactory explanation of all the relevant
circumstances. The interests of justice require a balance of any genuine need for
more time, against the nee d to finalise the matter without further delay. Relevant
factors include whether the application was timeously made, the extent of any
prejudice to any of the parties, and whether the application is opposed.
[12] In the present instance, it was not in dispute that Lotter’s illness and subsequent
hospitalisation were sudden, could not have been predicted, and posed a danger
to other s in t he context of the prevailing Covid 19 pandemic. Further, the
authenticity of the medical certificate submitted on Lotter’s behalf was not in
dispute. Neither the appellant nor the employers’ organisation acting on its behalf
dispute. Neither the appellant nor the employers’ organisation acting on its behalf
could have foreseen that Lotter would fall ill on the hearing date, to the ext ent
1 2001 (8) BCLR 775 (CC).
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that he would be hospitali sed. It follows that neither could have foreseen any
need to make any prior or contingency arrangement to replace Lotter.
[13] In terms of the applicable test, the commissioner was obliged to consider
whether the appellant had shown good cause for the postponement sought, and
whether the interests of justice required the matter to be postponed. As the
Constitutional Court has indicated, the latter enquiry involves a balancing of
interests – those of the party seeking more time and the statutory purpose of
expeditious dispute resolution. T he commissioner failed manifestly to consider
the prejudice that the appellant would suffer consequent on a refusal of the
request for a postponement, this prejudice being the denial of an opportunity to
defend the employee’s referral due to factors beyond its control in the form of the
sudden, unpredictable illness and hospitali sation of Lotter. The failure by a
commissioner to consider the element prejudice in similar circumstances was
considered in Chemstof (Pty ) Ltd v Commission for Conciliation, Mediation and
Arbitration and others
2 where the Court said, where a postponement had be en
refused on account of an injury sustained by the party’s representative:
‘The second respondent acted unreasonably and committed gross irregularities by:
i. making the ruling on th e postponement application in circumstances
where the second respondent had failed to properly consider Breedt’s
undertaking to fax a signed medical certificate and had failed to provide
Breedt with a reasonable opportunity to submit a signed medical
certificate;
ii. failing to weigh up the prejudice to the employees against the prejudice
that the applicant would suffer if the postponement application was
refused and failing to consider whether any prejudice to the employees
could be cured by an order for costs.’
[14] The commissioner’s ruling makes no attempt to balance the interests of the
[14] The commissioner’s ruling makes no attempt to balance the interests of the
parties. The appellant manifestly satisfied the requirement of good cause, having
2 (JR1445/12) [2015] ZALCJHB 467 (1 December 2015) at para 46.
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proffered a full and satisfactory explanation for its absence. The ruling comprises
little more than a one- sided castigation of the appellant. Had the commissioner
dismounted his high horse and reflected on the facts and the manifest prejudice
that would be caused to the appellant were the postponement to be refused, a
different outcome would have resulted. The commissioner failed to appreciate
that the appellant was of right, entitled to representation by an employers’
organisation and by a person sufficiently well- versed in the dispute. The time
period within which the commissioner expected the appellant to replace Lotter
was simply unrealistic. This is particularly so where the standard form for the
referral of disputes for arbitration contains little if anything in the way of facts and
conclusions of law on which the referring party intends to rely. There is no record
of any pleaded case, or pre- trial minute that might have assisted a seasoned
practitioner quickly to discern the case to be met. The commissioner’s
assumption that standing the matter down from 9:00 to 12:00 provided an
alternative representative with sufficient time both to acquaint him or herself with
the matter and prepare for an arbitration hearing, is simply not tenable.
[15] Although, as the Labour Court appreciated, the threshold for review is ultimately
the narrow ground of reasonableness, the failure by the commissioner to
consider the prejudice that a refusal to postpone the matter would cause to the
appellant and to balance the competing interests at stake is a reviewable
irregularity, one that had the result of a decision that fell outside of the band of
decisions to which a reasonable decision- maker could come on the available
evidence. The ruling refusing a postponement of the arbitration hearing thus
stood to be set aside, and the Labour Court erred when it upheld the ruling. It
follows that the default award and recission rulings issued consequent on the
follows that the default award and recission rulings issued consequent on the
refusal to postpone the arbitration hearing should also be set aside, and the
matter remitted to the CCMA for rehearing before a different commissioner.
Costs
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[16] Neither party seriously pursued the issue of costs, and the requirements of the
law and fairness dictate that each party should bear its own costs.
[17] In the result the following order is made:
Order
1. The appeal is upheld, with no order as to costs.
2. The order granted by the Labour Court is set aside and substituted by the
following:
a. ‘The first respondent’s refusal to postpone the arbitration hearing set
down for hearing on 9 April 2021 is reviewed and set aside.
b. The rescission rulings issued by the first respondent on 18 June 2021
and 21 July 2021 respectively are reviewed and set aside.
c. The default arbitration award issued by the second respondent on 21
April 2021 is reviewed and set aside.
d. The dispute between t he parties is remitted to the first respondent for
an arbitration hearing on the merits before a commissioner other than
the second respondent.
e. There is no order as to costs’
____________________
A. van Niekerk
Judge of the Labour Appeal Court of South Africa
Nkutha-Nkontwana J and Waglay AJA concur.
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APPEARANCES:
For the Appellant : Adv V Mndebele, with him Adv J Maboga,
Instructed by Webber Wentzel
For the Respondent : Adv O S Msimanga,
Instructed by Msikinya Attorneys & Associates